Attached files
file | filename |
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8-K - FORM 8-K - OIL STATES INTERNATIONAL, INC | h82669e8vk.htm |
EX-4.3 - EX-4.3 - OIL STATES INTERNATIONAL, INC | h82669exv4w3.htm |
EX-4.2 - EX-4.2 - OIL STATES INTERNATIONAL, INC | h82669exv4w2.htm |
EX-99.1 - EX-99.1 - OIL STATES INTERNATIONAL, INC | h82669exv99w1.htm |
EX-10.1 - EX-10.1 - OIL STATES INTERNATIONAL, INC | h82669exv10w1.htm |
Exhibit 4.1
OIL STATES INTERNATIONAL, INC.
6.500% SENIOR NOTES DUE 2019
INDENTURE
DATED AS OF JUNE 1, 2011
WELLS FARGO BANK, N.A.
Trustee
CROSS-REFERENCE TABLE*
TRUST INDENTURE ACT SECTION | INDENTURE SECTION | ||
310 |
(a)(1) | 7.10 | |
(a)(2) | 7.10 | ||
(a)(3) | N.A. | ||
(a)(4) | N.A. | ||
(a)(5) | 7.10 | ||
(b) | 7.10 | ||
311 |
(a) | 7.11 | |
(b) | 7.11 | ||
312 |
(a) | 2.5 | |
(b) | 11.3 | ||
(c) | 11.3 | ||
313 |
(a) | 7.6 | |
(b) | 7.6 | ||
(b)(2) | 7.7 | ||
(c) | 7.6; 11.2 | ||
(d) | 7.6 | ||
314 |
(a)(4) | 4.4; 11.5 | |
(b) | 11.3 | ||
(c) | 11.3 | ||
(d) | N.A. | ||
(e) | 11.5 | ||
(f) | N.A. | ||
315 |
(a) | 7.1 | |
(b) | 7.5 | ||
(c) | 7.1 | ||
(d) | 7.1 | ||
(e) | 6.11 | ||
316 |
(a)(last sentence) | 2.9 | |
(a)(1)(A) | 6.5 | ||
(a)(1)(B) | 6.4 | ||
(a)(2) | N.A. | ||
(b) | 6.7 | ||
(c) | 9.4 | ||
317 |
(a)(1) | 6.8 | |
(a)(2) | 6.9 | ||
(b) | 2.4 | ||
318 |
(a) | N.A. | |
(b) | N.A. | ||
(c) | 11.1 |
N.A. means not applicable. | ||
* | This Cross-Reference Table is not part of this Indenture. |
TABLE OF CONTENTS
Page | ||||
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
1 | |||
SECTION 1.1. Definitions |
1 | |||
SECTION 1.2. Other Definitions |
27 | |||
SECTION 1.3.
Incorporation by Reference of Trust Indenture Act. |
28 | |||
SECTION 1.4. Rules of Construction |
28 | |||
ARTICLE II THE NOTES |
29 | |||
SECTION 2.1. Form and Dating |
29 | |||
SECTION 2.2. Execution and Authentication |
30 | |||
SECTION 2.3. Registrar; Paying Agent |
31 | |||
SECTION 2.4. Paying Agent to Hold Money in Trust |
31 | |||
SECTION 2.5. Holder Lists |
31 | |||
SECTION 2.6. Book-Entry Provisions for Global Notes |
32 | |||
SECTION 2.7. Replacement Notes |
35 | |||
SECTION 2.8. Outstanding Notes |
35 | |||
SECTION 2.9. Treasury Notes |
35 | |||
SECTION 2.10. Temporary Notes |
35 | |||
SECTION 2.11. Cancellation |
36 | |||
SECTION 2.12. Defaulted Interest |
36 | |||
SECTION 2.13. Computation of Interest |
36 | |||
SECTION 2.14. CUSIP Number |
36 | |||
SECTION 2.15. Special Transfer Provisions |
36 | |||
SECTION 2.16. Issuance of Additional Notes |
39 | |||
ARTICLE III REDEMPTION AND PREPAYMENT |
39 | |||
SECTION 3.1. Notices to Trustee |
39 | |||
SECTION 3.2. Selection of Notes to Be Redeemed |
39 | |||
SECTION 3.3. Notice of Redemption |
40 | |||
SECTION 3.4. Effect of Notice of Redemption |
41 | |||
SECTION 3.5. Deposit of Redemption Price |
41 | |||
SECTION 3.6. Notes Redeemed in Part |
41 | |||
SECTION 3.7. Optional Redemption |
42 | |||
ARTICLE IV COVENANTS |
43 | |||
SECTION 4.1. Payment of Notes |
43 | |||
SECTION 4.2. Maintenance of Office or Agency |
43 | |||
SECTION 4.3. Provision of Financial Information |
44 | |||
SECTION 4.4. Compliance Certificate |
44 | |||
SECTION 4.5. Taxes |
45 | |||
SECTION 4.6. Stay, Extension and Usury Laws |
45 | |||
SECTION 4.7. Limitation on Restricted Payments |
45 | |||
SECTION 4.8. Limitation on Dividend and Other Restrictions
Affecting Restricted Subsidiaries |
49 | |||
SECTION 4.9. Limitation on Additional Indebtedness |
51 |
i
Page | ||||
SECTION 4.10. Limitation on Asset Sales |
55 | |||
SECTION 4.11. Limitation on Transactions with Affiliates |
58 | |||
SECTION 4.12. Limitation on Liens |
60 | |||
SECTION 4.13. Offer to Purchase upon Change of Control |
60 | |||
SECTION 4.14. Corporate Existence |
62 | |||
SECTION 4.15. Conduct of Business |
62 | |||
SECTION 4.16. Additional Guarantees |
62 | |||
SECTION 4.17. Limitation on Designation of Unrestricted Subsidiaries |
62 | |||
SECTION 4.18. Covenant Termination |
64 | |||
ARTICLE V SUCCESSORS |
65 | |||
SECTION 5.1. Consolidation, Merger, Conveyance, Transfer or Lease |
65 | |||
ARTICLE VI DEFAULTS AND REMEDIES |
67 | |||
SECTION 6.1. Events of Default |
67 | |||
SECTION 6.2. Acceleration |
69 | |||
SECTION 6.3. Other Remedies |
70 | |||
SECTION 6.4. Waiver of Past Defaults |
70 | |||
SECTION 6.5. Control by Majority |
70 | |||
SECTION 6.6. Limitation on Suits |
70 | |||
SECTION 6.7. Rights of Holders of Notes to Receive Payment |
71 | |||
SECTION 6.8. Collection Suit by Trustee |
71 | |||
SECTION 6.9. Trustee May File Proofs of Claim |
71 | |||
SECTION 6.10. Priorities |
72 | |||
SECTION 6.11. Undertaking for Costs |
72 | |||
ARTICLE VII TRUSTEE |
72 | |||
SECTION 7.1. Duties of Trustee |
72 | |||
SECTION 7.2. Rights of Trustee |
73 | |||
SECTION 7.3. Individual Rights of the Trustee |
75 | |||
SECTION 7.4. Trustees Disclaimer |
75 | |||
SECTION 7.5. Notice of Defaults |
75 | |||
SECTION 7.6. Reports by Trustee to Holders of the Notes |
75 | |||
SECTION 7.7. Compensation and Indemnity |
76 | |||
SECTION 7.8. Replacement of Trustee |
77 | |||
SECTION 7.9.
Successor Trustee by Merger, Etc. |
78 | |||
SECTION 7.10. Eligibility; Disqualification |
78 | |||
SECTION 7.11. Preferential Collection of Claims Against the Issuer |
78 | |||
ARTICLE VIII DEFEASANCE; DISCHARGE OF THIS INDENTURE |
78 | |||
SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance |
78 | |||
SECTION 8.2. Legal Defeasance |
78 | |||
SECTION 8.3. Covenant Defeasance |
79 | |||
SECTION 8.4. Conditions to Legal or Covenant Defeasance |
79 | |||
SECTION 8.5. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions |
80 | |||
SECTION 8.6. Repayment to Issuer |
81 | |||
SECTION 8.7. Reinstatement |
81 | |||
SECTION 8.8. Discharge |
81 |
ii
Page | ||||
ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER |
82 | |||
SECTION 9.1. Without Consent of Holders of the Notes |
82 | |||
SECTION 9.2. With Consent of Holders of Notes |
83 | |||
SECTION 9.3.
Compliance with Trust Indenture Act. |
84 | |||
SECTION 9.4. Revocation and Effect of Consents |
84 | |||
SECTION 9.5. Notation on or Exchange of Notes |
85 | |||
SECTION 9.6.
Trustee to Sign Amendments, Etc. |
85 | |||
ARTICLE X GUARANTEES |
85 | |||
SECTION 10.1. Guarantees |
85 | |||
SECTION 10.2. Execution and Delivery of Guarantee |
87 | |||
SECTION 10.3. Severability |
87 | |||
SECTION 10.4. Limitation of Guarantors Liability |
87 | |||
SECTION 10.5. Releases |
87 | |||
SECTION 10.6. Benefits Acknowledged |
88 | |||
ARTICLE XI MISCELLANEOUS |
88 | |||
SECTION 11.1. Trust Indenture Act Controls |
88 | |||
SECTION 11.2. Notices |
88 | |||
SECTION 11.3. Communication by Holders of Notes with Other Holders of Notes |
90 | |||
SECTION 11.4. Certificate and Opinion as to Conditions Precedent |
90 | |||
SECTION 11.5. Statements Required in Certificate or Opinion |
90 | |||
SECTION 11.6. Rules by Trustee and Agents |
90 | |||
SECTION 11.7. No Personal Liability of Directors, Officers, Employees and Stockholders |
90 | |||
SECTION 11.8. Governing Law; Consent to Jurisdiction |
91 | |||
SECTION 11.9. No Adverse Interpretation of Other Agreements |
91 | |||
SECTION 11.10. Successors |
91 | |||
SECTION 11.11. Severability |
91 | |||
SECTION 11.12. Counterpart Originals |
91 | |||
SECTION
11.13. Table of Contents, Headings, Etc. |
91 | |||
SECTION 11.14. Acts of Holders |
91 | |||
SECTION 11.15. Force Majeure |
92 | |||
SECTION 11.16. Legal Holidays |
93 |
Exhibits | ||
Exhibit A
|
Form of Note | |
Exhibit B
|
Form of Supplemental Indenture to be Delivered by Subsequent Guarantors | |
Exhibit C
|
Form of Certificate to be Delivered in Connection with Transfers Pursuant to Rule 144A | |
Exhibit D
|
Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S |
iii
This Indenture, dated as of June 1, 2011, is by and among Oil States International, Inc., a
Delaware corporation, the guarantors listed on the signature pages hereto, and Wells Fargo Bank,
N.A., as trustee (the Trustee), paying agent and registrar.
The Issuer, the Guarantors and the Trustee agree as follows for the benefit of each other and
for the equal and ratable benefit of the Holders (as defined herein) of (i) the Issuers 6.500%
Senior Notes due 2019 issued on the date hereof (the Initial Notes) and (ii) Additional Notes (as
defined herein):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions.
Acquired Indebtedness means:
(1) with respect to any Person that becomes a Restricted Subsidiary after the Issue
Date, Indebtedness of such Person and its Subsidiaries (including, for the avoidance of
doubt, Indebtedness incurred in the ordinary course of such Persons business to acquire
assets used or useful in its business) existing at the time such Person becomes a Restricted
Subsidiary; and
(2) with respect to the Issuer or any Restricted Subsidiary, any Indebtedness of a
Person (including, for the avoidance of doubt, Indebtedness incurred in the ordinary course
of such Persons business to acquire assets used or useful in its business), other than the
Issuer or a Restricted Subsidiary, existing at the time such Person is merged with or into
the Issuer or a Restricted Subsidiary, or Indebtedness expressly assumed by the Issuer or
any Restricted Subsidiary in connection with the acquisition of an asset or assets from
another Person.
Additional Interest has the meaning set forth in the Registration Rights Agreement.
Additional Notes means Notes (other than the Initial Notes, but including any Exchange
Notes) issued pursuant to Article II and otherwise in compliance with the provisions of this
Indenture.
Affiliate of any Person means any other Person which directly or indirectly controls or is
controlled by, or is under direct or indirect common control with, the referent Person. For
purposes of this definition, control of a Person shall mean the power to direct the management
and policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise.
Agent means any Registrar, Paying Agent, co-registrar or other agent appointed pursuant to
this Indenture.
amend means to amend, supplement, restate, amend and restate or otherwise modify, including
successively, and amendment shall have a correlative meaning.
1
Applicable Premium means, with respect to any Note on any applicable redemption date, the
greater of:
(1) 1.0% of the principal amount of such Note; and
(2) the excess, if any, of:
(a) the present value at such redemption date of (i) the redemption price of
such Note at June 1, 2014 (such redemption price being set forth in the table
appearing in Section 3.7(b)) plus (ii) all required interest payments (excluding
accrued and unpaid interest to such redemption date) due on such Note through June
1, 2014, computed using a discount rate equal to the Treasury Rate as of such
redemption date plus 50 basis points; over
(b) the principal amount of such Note.
asset means any asset or property, including, without limitation, Equity Interests.
Asset Acquisition means:
(1) an Investment by the Issuer or any Restricted Subsidiary of the Issuer in any other
Person if, as a result of such Investment, such Person shall become a Restricted Subsidiary
of the Issuer, or shall be merged with or into the Issuer or any Restricted Subsidiary of
the Issuer, or
(2) the acquisition by the Issuer or any Restricted Subsidiary of the Issuer of all or
substantially all of the assets of any other Person (other than a Restricted Subsidiary of
the Issuer) or any division or line of business of any such other Person (other than in the
ordinary course of business).
Asset Sale means:
(1) any sale, conveyance, transfer, lease, assignment or other disposition by the
Issuer or any Restricted Subsidiary to any Person other than the Issuer or any Restricted
Subsidiary (including by means of a sale and leaseback transaction or a merger or
consolidation), in one transaction or a series of related transactions, of any assets of the
Issuer or any of its Restricted Subsidiaries other than in the ordinary course of business;
or
(2) any issuance of Equity Interests of a Restricted Subsidiary (other than Preferred
Stock of Restricted Subsidiaries issued in compliance with Section 4.9) to any Person other
than the Issuer or any Restricted Subsidiary in one transaction or a series of related
transactions (the actions described in these clauses (1) and (2), collectively, for purposes
of this definition, a transfer).
For purposes of this definition, the term Asset Sale shall not include:
(a) transfers of cash or Cash Equivalents;
2
(b) transfers of assets (including Equity Interests) that are governed by, and made in
accordance with, Section 4.13 or Section 5.1;
(c) Permitted Investments and Restricted Payments permitted under Section 4.7;
(d) the creation of or realization on any Permitted Lien and any disposition of assets
resulting from the enforcement or foreclosure of any such Permitted Lien;
(e) transfers of damaged, worn-out or obsolete equipment or assets that, in the
Issuers reasonable judgment, are no longer used or useful in the business of the Issuer or
its Restricted Subsidiaries;
(f) sales or grants of licenses or sublicenses to use the patents, trade secrets,
know-how and other Intellectual Property, and licenses, leases or subleases of other assets,
of the Issuer or any Restricted Subsidiary to the extent not materially interfering with the
business of the Issuer and the Restricted Subsidiaries;
(g) any sale, lease, conveyance or other disposition of any assets or any sale or
issuance of Equity Interests in each case, made pursuant to a Permitted Joint Venture
Investment;
(h) a disposition of inventory in the ordinary course of business;
(i) a disposition of receivables in connection with the compromise, settlement or
collection thereof in the ordinary course of business or in bankruptcy or similar
proceedings and exclusive of factoring and similar arrangements;
(j) the trade or exchange by the Issuer or any Restricted Subsidiary of any asset for
any other asset or assets that are used in a Permitted Business; provided, that the Fair
Market Value of the asset or assets received by the Issuer or any Restricted Subsidiary in
such trade or exchange (including any cash or Cash Equivalents) is at least equal to the
Fair Market Value (as determined in good faith by the Board of Directors or an executive
officer of the Issuer or of such Restricted Subsidiary with responsibility for such
transaction, which determination shall be conclusive evidence of compliance with this
provision) of the asset or assets disposed of by the Issuer or any Restricted Subsidiary
pursuant to such trade or exchange; and, provided, further, that if any cash or Cash
Equivalents are used in such trade or exchange to achieve an exchange of equivalent value,
that the amount of such cash and/or Cash Equivalents received shall be deemed proceeds of an
Asset Sale, subject to the following clause (k); and
(k) any transfer or series of related transfers that, but for this clause, would be
Asset Sales, if after giving effect to such transfers, the aggregate Fair Market Value of
the assets transferred in such transaction or any such series of related transactions does
not exceed $10.0 million per occurrence.
Bankruptcy Law means Title 11, U.S. Code or any similar federal, state or foreign law for
the relief of debtors, and all other liquidation, conservatorship, bankruptcy, assignment for
3
the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
winding-up, restructuring, examinership or similar debtor relief laws.
Board of Directors means, with respect to any Person, (i) in the case of any corporation,
the board of directors of such Person and (ii) in any other case, the functional equivalent of the
foregoing or, in each case, other than for purposes of the definition of Change of Control, any
duly authorized committee of such body.
Business Day means a day other than a Saturday, Sunday or other day on which banking
institutions in Houston, Texas or the State of New York are authorized or required by law to close.
Capitalized Lease means a lease required to be capitalized for financial reporting purposes
in accordance with GAAP. Notwithstanding the foregoing, any lease that would have been classified
as an operating lease pursuant to U.S. generally accepted accounting principles as in effect on the
Issue Date shall be deemed not to be a Capitalized Lease.
Capitalized Lease Obligations of any Person means the obligations of such Person to pay rent
or other amounts under a Capitalized Lease, and the amount of such obligation shall be the
capitalized amount thereof determined in accordance with GAAP.
Cash Equivalents means:
(1) marketable obligations issued or directly and fully guaranteed or insured by the
United States government or any agency or instrumentality thereof (provided, that the full
faith and credit of such government is pledged in support thereof), maturing within one year
of the date of acquisition thereof;
(2) demand and time deposits and certificates of deposit of any lender under any Credit
Facility or any Eligible Bank organized under the laws of the United States, any state
thereof or the District of Columbia or a U.S. branch of any other Eligible Bank maturing
within one year of the date of acquisition thereof;
(3) commercial paper issued by any Person incorporated in the United States rated at
least A1 or the equivalent thereof by S&P or at least P-1 or the equivalent thereof by
Moodys or an equivalent rating by a nationally recognized rating agency if both S&P and
Moodys cease publishing ratings of commercial paper issuers generally, and in each case
maturing not more than one year after the date of acquisition thereof;
(4) repurchase obligations with a term of not more than one year for underlying
securities of the types described in clause (1) above entered into with any Eligible Bank
and maturing not more than one year after such time;
(5) securities issued and fully guaranteed by any state, commonwealth or territory of
the United States or by any political subdivision or taxing authority thereof, rated at
least A by Moodys or S&P and having maturities of not more than one year from the date of
acquisition;
4
(6) investments in money market or other mutual funds substantially all of whose assets
comprise securities of the types described in clauses (1) through (5) above;
(7) demand deposit accounts maintained in the ordinary course of business; and
(8) in the case of any Subsidiary of the Issuer organized or having its principal place
of business outside the United States, investments denominated in the currency of the
jurisdiction in which such Subsidiary is organized or has its principal place of business
which are similar to the items specified in clauses (1) through (7) above.
Change of Control means the occurrence of any of the following events:
(1) the direct or indirect sale, transfer, conveyance or other disposition (other than
by way of merger or consolidation), in one or a series of related transactions, of all or
substantially all of the properties or assets of the Issuer and its Restricted Subsidiaries,
taken as a whole, to any person (as that term is used in Section 13(d)(3) of the Exchange
Act), which occurrence is followed by a Rating Decline within 90 days of the consummation of
such transaction;
(2) any person or group (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the beneficial owner of (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that for purposes of this clause that person or group shall
be deemed to have beneficial ownership of all securities that any such person or group has
the right to acquire, whether such right is exercisable immediately or only after the
passage of time), or controls, directly or indirectly, Voting Stock representing more than
50.0% of the voting power of the total outstanding Voting Stock of the Issuer on a fully
diluted basis, which occurrence is followed by a Rating Decline within 90 days thereof, in
each case other than as a result of a merger or consolidation as a result of which the
beneficial owners of the Issuers Voting Stock immediately prior to the transaction
beneficially own, immediately after the transaction, a majority of the voting power of the
Voting Stock of the successor entity or any parent thereof;
(3) during any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors of the Issuer (together with any new
directors whose election to such Board of Directors or whose nomination for election by the
stockholders of the Issuer was approved by a vote of a majority of the directors of the
Issuer then still in office who were either directors or trustees, as the case may be, at
the beginning of such period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board of Directors of the
Issuer, which occurrence is followed by a Rating Decline within 90 days thereof; and
(4) the adoption by the stockholders of the Issuer of a Plan of Liquidation.
For purposes of this definition, a Person shall not be deemed to have beneficial
ownership of securities subject to a stock purchase agreement, merger agreement or
5
similar agreement until the consummation of the transactions contemplated by such
agreement.
Common Stock means with respect to any Person, any and all shares, interest or other
participations in, and other equivalents (however designated and whether voting or nonvoting) of
such Persons common stock whether or not outstanding on the Issue Date, and includes, without
limitation, all series and classes of such common stock.
Consolidated Amortization Expense for any period means the amortization expense of the
Issuer and the Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
Consolidated Cash Flow for any period means, with respect to any specified Person and its
Restricted Subsidiaries, without duplication, the sum of the amounts for such period of:
(1) Consolidated Net Income, plus
(2) in each case only to the extent deducted in determining Consolidated Net Income,
(a) Consolidated Income Tax Expense,
(b) Consolidated Amortization Expense,
(c) Consolidated Depreciation Expense,
(d) Consolidated Interest Expense, and
(e) all other non-cash items reducing the Consolidated Net Income (excluding
any non-cash charge that results in an accrual of a reserve for cash charges in any
future period) for such period, minus
(3) the aggregate amount of all non-cash items, determined on a consolidated basis, to
the extent such items increased Consolidated Net Income for such period (excluding any
non-cash items to the extent they represent the reversal of an accrual of a reserve for a
potential cash item that reduced Consolidated Cash Flow in any prior period); and
(4) excluding any nonrecurring or unusual gain or income (or nonrecurring or unusual
loss or expense), together with any related provision for taxes on any such nonrecurring or
unusual gain or income (or the tax effect of any such nonrecurring or unusual loss or
expense), realized by such Person or any Restricted Subsidiary during such period.
Consolidated Depreciation Expense for any period means the depreciation expense of the
Issuer and its Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
6
Consolidated Income Tax Expense for any period means the provision for taxes of the
Issuer and its Restricted Subsidiaries, determined on a consolidated basis in accordance with GAAP.
Consolidated Interest Coverage Ratio means, on any date of determination, with respect to
any Person, the ratio of (x) Consolidated Cash Flow during the most recent four consecutive full
fiscal quarters for which financial statements prepared on a consolidated basis in accordance with
GAAP are available (the Four-Quarter Period) ending on or prior to the date of the transaction
giving rise to the need to calculate the Consolidated Interest Coverage Ratio (the Transaction
Date) to (y) Consolidated Interest Expense for the Four-Quarter Period. For purposes of this
definition, Consolidated Cash Flow and Consolidated Interest Expense shall be calculated after
giving effect on a pro forma basis for the period of such calculation to:
(1) the incurrence of any Indebtedness or the issuance of any Disqualified Equity
Interests of the Issuer or Disqualified Equity Interests or Preferred Stock of any
Restricted Subsidiary (and the application of the proceeds thereof) and any repayment,
repurchase or redemption of other Indebtedness or other Disqualified Equity Interests or
Preferred Stock (and the application of the proceeds therefrom) (other than the incurrence
or repayment of Indebtedness in the ordinary course of business for working capital purposes
pursuant to any revolving credit arrangement) occurring during the Four-Quarter Period or at
any time subsequent to the last day of the Four-Quarter Period and on or prior to the
Transaction Date, as if such incurrence, repayment, repurchase, issuance or redemption, as
the case may be (and the application of the proceeds thereof), occurred on the first day of
the Four-Quarter Period; and
(2) any Asset Sale or Asset Acquisition (including, without limitation, any Asset
Acquisition giving rise to the need to make such calculation as a result of the Issuer or
any Restricted Subsidiary (including any Person who becomes a Restricted Subsidiary as a
result of such Asset Acquisition) incurring Acquired Indebtedness and also including any
Consolidated Cash Flow (including any pro forma expense and cost reductions that have
occurred or are reasonably expected to occur within the next 12 months)) in each case
occurring during the Four-Quarter Period or at any time subsequent to the last day of the
Four-Quarter Period and on or prior to the Transaction Date, as if such Asset Sale or Asset
Acquisition (including the incurrence of, or assumption or liability for, any such
Indebtedness or Acquired Indebtedness) occurred on the first day of the Four-Quarter Period;
provided, that such pro forma calculations shall be determined in good faith by a
Responsible Financial or Accounting Officer of the Issuer whether or not such pro forma
adjustments would be permitted under SEC rules or guidelines.
In calculating Consolidated Interest Expense for purposes of determining the
denominator (but not the numerator) of this Consolidated Interest Coverage Ratio:
(a) interest on outstanding Indebtedness determined on a fluctuating basis as of the
Transaction Date and which will continue to be so determined thereafter shall be deemed to
have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in
effect on the Transaction Date;
7
(b) if interest on any Indebtedness actually incurred on the Transaction Date may
optionally be determined at an interest rate based upon a factor of a prime or similar rate,
a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on
the Transaction Date will be deemed to have been in effect during the Four-Quarter Period;
and
(c) notwithstanding clause (a) or (b) above, interest on Indebtedness determined on a
fluctuating basis, to the extent such interest is covered by agreements relating to Hedging
Obligations, shall be deemed to accrue at the rate per annum resulting after giving effect
to the operation of such agreements.
Consolidated Interest Expense for any period means the sum, without duplication, of the
total interest expense of the Issuer and the Restricted Subsidiaries for such period, determined on
a consolidated basis in accordance with GAAP, including, without duplication:
(1) imputed interest on Capitalized Lease Obligations;
(2) commissions, discounts and other fees and charges owed with respect to letters of
credit securing financial obligations, bankers acceptance financing and receivables
financings;
(3) the net costs associated with Hedging Obligations related to interest rates;
(4) amortization of debt issuance costs, debt discount or premium and other financing
fees and expenses;
(5) the interest portion of any deferred payment obligations;
(6) all other non-cash interest expense (except as provided below);
(7) capitalized interest;
(8) all dividend payments on any series of Disqualified Equity Interests of the Issuer
or any of its Restricted Subsidiaries or any Preferred Stock of any Restricted Subsidiary
(other than dividends on Equity Interests payable solely in Qualified Equity Interests of
the Issuer or to the Issuer or a Restricted Subsidiary of the Issuer);
(9) all interest payable with respect to discontinued operations; and
(10) all interest on any Indebtedness described in clause (7) or (8) of the definition
of Indebtedness, and
excluding, without duplication, any non-cash interest referred to in clause (10) of the definition
of Consolidated Net Income and the cumulative effect of any change in accounting principles or
policies.
Consolidated Net Income for any period means the net income (or loss) of such Person and its
Restricted Subsidiaries, in each case for such period determined on a consolidated basis in
8
accordance with GAAP; provided that there shall be excluded in calculating such net income (or
loss), to the extent otherwise included therein, without duplication:
(1) the net income (or loss) of any Person (other than a Restricted Subsidiary) in
which any Person other than the Issuer and the Restricted Subsidiaries has an ownership
interest, except to the extent that cash in an amount equal to any such income has actually
been received by the Issuer or any of its Restricted Subsidiaries during such period;
(2) except to the extent includible in the net income (or loss) of the Issuer pursuant
to the foregoing clause (1), the net income (or loss) of any Person that accrued prior to
the date that (a) such Person becomes a Restricted Subsidiary or is merged into or
consolidated with the Issuer or any Restricted Subsidiary or (b) the assets of such Person
are acquired by the Issuer or any Restricted Subsidiary;
(3) the net income of any Restricted Subsidiary other than a Guarantor during such
period to the extent that the declaration or payment of dividends or similar distributions
by such Restricted Subsidiary of that income is not permitted by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to that Subsidiary during such period, unless such
restriction with respect to the payment of dividends has been legally waived;
(4) gains or losses attributable to discontinued operations;
(5) any gain (or loss), together with any related provisions for taxes on any such gain
(or the tax effect of any such loss), realized during such period by the Issuer or any
Restricted Subsidiary upon (a) the acquisition of any securities, or the extinguishment of
any Indebtedness, of the Issuer or any Restricted Subsidiary or (b) any Asset Sale by the
Issuer or any Restricted Subsidiary;
(6) gains and losses due solely to fluctuations in currency values and the related tax
effects according to GAAP;
(7) unrealized gains and losses with respect to Hedging Obligations;
(8) the cumulative effect of any change in accounting principles or policies;
(9) extraordinary gains and losses and the related tax effect;
(10) non-cash interest expense attributable to the equity component of convertible
debt, including under ASC Topic 470;
(11) non-cash charges or expenses with respect to the grant of stock options,
restricted stock or other equity compensation awards; and
(12) goodwill write-downs or other non-cash impairments of assets.
9
Consolidated Tangible Assets means, with respect to any Person as of any date, the amount
which, in accordance with GAAP, would be set forth under the caption Total Assets (or any like
caption) on a consolidated balance sheet of such Person and its Restricted Subsidiaries determined
in accordance with GAAP, less, to the extent included in a determination of Total Assets, and
without duplication, all goodwill, patents, tradenames, trademarks, copyrights, franchises,
experimental expenses, organization expenses and any other amounts classified as intangible assets
in accordance with GAAP.
Corporate Trust Office means the offices of the Trustee at which at any time its corporate
trust business shall be principally administered, which office as of the date hereof is located at
Wells Fargo Bank, N.A., 1445 Ross Avenue, 2nd Floor, MAC T5303-022, Dallas, Texas
75202-2812, Attention: Corporate, Municipal & Escrow Services, or such other address as the Trustee
may designate from time to time by notice to the Holders and the Issuer, or the corporate trust
office of any successor trustee (or such other address as such successor trustee may designate from
time to time by notice to the Holders and the Issuer).
Credit Agreement means the Amended and Restated Credit Agreement dated as of December 10,
2010, by and among the Issuer, as borrower, certain Canadian Restricted Subsidiaries of the Issuer,
as borrowers, Wells Fargo Bank, N.A., as administrative agent, and the several lenders and other
agents party thereto, including any notes, guarantees, collateral and security documents,
instruments and agreements executed in connection therewith (including Hedging Obligations related
to the Indebtedness incurred thereunder), and in each case as such agreement or facility may be
amended (including any amendment or restatement thereof), supplemented or otherwise modified from
time to time, including any agreement or indenture exchanging, extending the maturity of,
refinancing, renewing, replacing, substituting or otherwise restructuring, whether in the bank or
debt capital markets (or combination thereof) (including increasing the amount of available
borrowings thereunder or adding or removing Subsidiaries as borrowers or guarantors thereunder) all
or any portion of the Indebtedness under such agreement or facility or any successor or replacement
agreement or facility.
Credit Facilities means one or more debt facilities or indentures (which may be outstanding
at the same time and including, without limitation, the Credit Agreement) providing for revolving
credit loans, debt securities, term loans, receivables financing or letters of credit and, in each
case, as such agreements may be amended, refinanced, restated, refunded or otherwise restructured,
in whole or in part from time to time (including increasing the amount of available borrowings
thereunder or adding Subsidiaries of the Issuer as additional borrowers or guarantors thereunder)
with respect to all or any portion of the Indebtedness under such agreement or agreements or any
successor or replacement agreement or agreements and whether by the same or any other agent,
lender, group of lenders or institutional lenders or investors.
Default means (1) any Event of Default or (2) any event, act or condition that, after notice
or the passage of time or both, would be an Event of Default.
Depositary means with respect to the Notes issuable or issued in whole or in part in global
form, the Person specified in Section 2.3 hereof as the Depositary with respect to the Global
Notes, and any and all successors thereto appointed as depositary hereunder and having become such
pursuant to the applicable provision of this Indenture.
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Designated Non-cash Consideration means the Fair Market Value of non-cash consideration
received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale that is so
designated as Designated Non-cash Consideration pursuant to an Officers Certificate, setting forth
the basis of such valuation, executed by the Chief Financial Officer of the Issuer, less the amount
of cash or Cash Equivalents received in connection with a subsequent sale of or collection on such
Designated Non-cash Consideration.
Disqualified Equity Interests of any Person means any class of Equity Interests of such
Person that, by its terms, or by the terms of any related agreement or of any security into which
it is convertible, puttable or exchangeable (in each case, at the option of the holder thereof),
is, or upon the happening of any event or the passage of time would be, required to be redeemed by
such Person, at the option of the holder thereof, or matures or is mandatorily redeemable, pursuant
to a sinking fund obligation or otherwise, in whole or in part, on or prior to the date which is 91
days after the Stated Maturity of the Notes; provided, however, that any class of Equity Interests
of such Person that, by its terms, authorizes such Person to satisfy in full its obligations with
respect to the payment of dividends or upon maturity, redemption (pursuant to a sinking fund or
otherwise) or repurchase thereof or otherwise by the delivery of Equity Interests that are not
Disqualified Equity Interests, and that is not convertible, puttable or exchangeable for
Disqualified Equity Interests or Indebtedness, will not be deemed to be Disqualified Equity
Interests so long as such Person satisfies its obligations with respect thereto solely by the
delivery of Equity Interests that are not Disqualified Equity Interests; provided, further,
however, that any Equity Interests that would not constitute Disqualified Equity Interests but for
provisions thereof giving holders thereof (or the holders of any security into or for which such
Equity Interests are convertible, exchangeable or exercisable) the right to require the Issuer to
repurchase or redeem such Equity Interests upon the occurrence of a change in control or an Asset
Sale occurring prior to the 91st day after the Stated Maturity of the Notes shall not constitute
Disqualified Equity Interests if the change of control or asset sale provisions applicable to such
Equity Interests are no more favorable to such holders than Section 4.13 and Section 4.10,
respectively, and such Equity Interests specifically provide that the Issuer will not repurchase or
redeem any such Equity Interests pursuant to such provisions prior to the Issuers purchase of the
Notes as required pursuant to Section 4.13 and Section 4.10, respectively.
dollars, U.S. dollars or $ means lawful money of the United States.
DTC means The Depository Trust Company and any successor.
Eligible Bank shall mean any commercial bank having, or which is the principal banking
subsidiary of a bank holding company having, capital and surplus aggregating in excess of $250.0
million (or in the equivalent thereof in a foreign currency as of the date of determination) and a
rating of A (or such other similar equivalent rating) or higher by at least one nationally
recognized statistical rating organization.
Equity Interests of any Person means (1) any and all shares or other equity interests
(including Common Stock, Preferred Stock, limited liability company interests, trust units and
partnership interests) in such Person and (2) all rights to purchase, warrants or options (whether
or not currently exercisable), participations or other equivalents of or interests in (however
designated) such shares or other interests in such Person, but excluding from all of the foregoing
11
any debt securities convertible into Equity Interests, regardless of whether such debt
securities include any right of participation with Equity Interests.
Exchange Act means the U.S. Securities Exchange Act of 1934, as amended.
Exchange Notes means any Notes issued in exchange for the Initial Notes or Additional Notes
pursuant to Section 2.6(h).
Exchange Offer has the meaning set forth in the Registration Rights Agreement.
Fair Market Value means, with respect to any asset, the price (after taking into account any
liabilities relating to such asset) that would be negotiated in an arms-length transaction for
cash between a willing seller and a willing and able buyer, neither of which is under any
compulsion to complete the transaction as such price is determined in good faith by management of
the Issuer.
Foreign Restricted Subsidiary means any Restricted Subsidiary not organized or existing
under the laws of the United States, any state thereof or the District of Columbia.
GAAP means generally accepted accounting principles in the United States, which are in
effect from time to time.
Global Note Legend means the legend identified as such in Exhibit A.
Global Notes means the Notes that are in the form of Exhibit A issued in global form
and registered in the name of the Depositary or its nominee.
guarantee means a direct or indirect guarantee by any Person of any Indebtedness of any
other Person and includes any obligation, direct or indirect, contingent or otherwise, of such
Person entered into for purposes of assuring in any other manner the obligee of such Indebtedness
of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in
part); guarantee, when used as a verb, and guaranteed have correlative meanings.
Guarantee means, individually, any guarantee of payment of the Notes by a Guarantor pursuant
to the terms of this Indenture and any supplemental indenture hereto, and, collectively, all such
guarantees.
Guarantors means each Restricted Subsidiary of the Issuer on the Issue Date that is a party
to this Indenture for purposes of providing a Guarantee with respect to the Notes, and each other
Person that is required to, or at the election of the Issuer, does become a Guarantor by the terms
of this Indenture after the Issue Date, in each case, until such Person is released from its
Guarantee in accordance with the terms of this Indenture.
Hedging Obligations of any Person means the obligations of such Person under option, swap,
cap, collar, forward purchase or similar agreements or arrangements intended to manage exposure to
interest rates or currency exchange rates or commodity prices (including, without
12
limitation, for purposes of this definition, rates for electrical power used in the ordinary
course of business), either generally or under specific contingencies.
Holder means any registered holder, from time to time, of the Notes.
incur means, with respect to any Indebtedness or Obligation, incur, create, issue, assume,
guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with
respect to such Indebtedness or Obligation; provided that (1) the Indebtedness of a Person existing
at the time such Person becomes a Restricted Subsidiary of the Issuer shall be deemed to have been
incurred by such Restricted Subsidiary at the time it becomes a Restricted Subsidiary of the Issuer
and (2) neither the accrual of interest nor the accretion of original issue discount or the
accretion or accumulation of dividends on any Equity Interests shall be deemed to be an incurrence
of Indebtedness.
Indebtedness of any Person at any date means, without duplication:
(1) all liabilities, contingent or otherwise, of such Person for borrowed money
(whether or not the recourse of the lender is to the whole of the assets of such Person or
only to a portion thereof);
(2) all obligations of such Person evidenced by bonds, debentures, bankers
acceptances, notes or other similar instruments;
(3) all reimbursement obligations of such Person in respect of letters of credit,
letters of guaranty and similar credit transactions;
(4) all obligations of such Person to pay the deferred and unpaid purchase price of
property or services, except deferred compensation, trade payables and accrued expenses
incurred by such Person in the ordinary course of business in connection with obtaining
goods, materials or services and not overdue by more than 180 days unless subject to a bona
fide dispute;
(5) the maximum fixed redemption or repurchase price of all Disqualified Equity
Interests of such Person or, with respect to any Subsidiary that is not a Guarantor, any
Preferred Stock;
(6) all Capitalized Lease Obligations of such Person;
(7) all Indebtedness of others secured by a Lien on any asset of such Person, whether
or not such Indebtedness is assumed by such Person;
(8) all Indebtedness of others guaranteed by such Person to the extent of such
guarantee; provided that Indebtedness of the Issuer or its Subsidiaries that is guaranteed
by the Issuer or the Issuers Subsidiaries shall only be counted once in the calculation of
the amount of Indebtedness of the Issuer and its Subsidiaries on a consolidated basis;
(9) to the extent not otherwise included in this definition, net Hedging Obligations of
such Person; and
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(10) all obligations of such Person under conditional sale or other title retention
agreements relating to assets purchased by such Person.
The amount of any Indebtedness which is incurred at a discount to the principal amount at maturity
thereof as of any date shall be deemed to have been incurred at the accreted value thereof as of
such date. The amount of Indebtedness of any Person at any date shall be the outstanding balance at
such date of all unconditional obligations as described above, the maximum liability of such Person
for any such contingent obligations at such date and, in the case of clause (7), the lesser of (a)
the Fair Market Value of any asset subject to a Lien securing the Indebtedness of others on the
date that the Lien attaches and (b) the amount of the Indebtedness secured. For purposes of clause
(5), the maximum fixed redemption or repurchase price of any Disqualified Equity Interests that
do not have a fixed redemption or repurchase price shall be calculated in accordance with the terms
of such Disqualified Equity Interests as if such Disqualified Equity Interests were redeemed or
repurchased on any date on which an amount of Indebtedness outstanding shall be required to be
determined pursuant to this Indenture.
Indenture means this Indenture, as amended or supplemented from time to time.
Independent Director means a director of the Issuer who is independent with respect to the
transaction at issue.
Initial Notes has the meaning set forth in the preamble hereto.
Intellectual Property means all patents, patent applications, trademarks, trade names,
service marks, copyrights, technology, trade secrets, proprietary information, domain names,
know-how and processes necessary for the conduct of the Issuers or any Restricted Subsidiarys
business.
Investments of any Person means:
(1) all direct or indirect investments by such Person in any other Person (including
Affiliates) in the form of loans, advances or capital contributions or other credit
extensions constituting Indebtedness of such other Person, and any guarantee of Indebtedness
of any other Person;
(2) all purchases (or other acquisitions for consideration) by such Person of
Indebtedness, Equity Interests or other securities of any other Person (other than any such
purchase that constitutes a Restricted Payment of the type described in clause (2) of the
definition thereof);
(3) all other items that would be classified as investments in another Person on a
balance sheet of such Person prepared in accordance with GAAP; and
(4) the Designation of any Subsidiary as an Unrestricted Subsidiary.
Except as otherwise expressly specified in this definition, the amount of any Investment
(other than an Investment made in cash) shall be the Fair Market Value thereof on the date such
14
Investment is made. The amount of an Investment pursuant to clause (4) shall be the
Designation Amount determined in accordance with Section 4.17. If the Issuer or any Restricted
Subsidiary sells or otherwise disposes of any Equity Interests of any Restricted Subsidiary, or any
Restricted Subsidiary issues any Equity Interests, in either case, such that, after giving effect
to any such sale or disposition, such Person is no longer a Subsidiary, the Issuer shall be deemed
to have made an Investment on the date of any such sale or other disposition equal to the Fair
Market Value of the Equity Interests of and all other Investments in such Restricted Subsidiary
retained. Notwithstanding the foregoing, purchases or redemptions of Equity Interests of the Issuer
shall be deemed not to be Investments.
Issue Date means the date on which the Initial Notes are originally issued.
Issuer means Oil States International, Inc., a Delaware corporation, and any successor
Person resulting from any transaction permitted by Section 5.1.
Lien means, with respect to any asset, any mortgage, deed of trust, lien (statutory or
other), pledge, lease, easement, restriction, covenant, charge, security interest or other
encumbrance of any kind or nature in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law, including any conditional sale or other title retention
agreement.
Moodys means Moodys Investors Service, Inc. and its successors.
Net Available Proceeds means, with respect to any Asset Sale, the proceeds thereof in the
form of cash or Cash Equivalents received by the Issuer or any of its Restricted Subsidiaries from
such Asset Sale, net of:
(1) brokerage commissions and other fees and expenses (including fees, discounts and
expenses of legal counsel, accountants and investment banks, consultants and placement
agents) of such Asset Sale;
(2) provisions for taxes payable (including any withholding or other taxes paid or
reasonably estimated to be payable in connection with the transfer to the Issuer of such
proceeds from any Restricted Subsidiary that received such proceeds) as a result of such
Asset Sale (after taking into account any available tax credits or deductions and any tax
sharing arrangements);
(3) amounts required to be paid to any Person (other than the Issuer or any Restricted
Subsidiary) owning a beneficial interest in the assets subject to the Asset Sale or having a
Lien thereon;
(4) payments of unassumed liabilities (not constituting Indebtedness) relating to the
assets sold at the time of, or within 30 days after the date of, such Asset Sale; and
(5) appropriate amounts to be provided by the Issuer or any Restricted Subsidiary, as
the case may be, as a reserve required in accordance with GAAP against any adjustment in the
sale price of such asset or assets or liabilities associated with such Asset Sale and
retained by the Issuer or any Restricted Subsidiary, as the case may be,
15
after such Asset Sale, including pensions and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under any
indemnification obligations associated with such Asset Sale; provided, however, that any
amounts remaining after adjustments, revaluations or liquidations of such reserves shall
constitute Net Available Proceeds.
Non-Recourse Debt means Indebtedness of an Unrestricted Subsidiary:
(1) as to which neither the Issuer nor any Restricted Subsidiary (a) provides credit
support of any kind (including any undertaking, agreement or instrument that would
constitute Indebtedness), (b) is directly or indirectly liable as a guarantor or otherwise,
or (c) constitutes the lender; and
(2) no default with respect to which (including any rights that the holders thereof may
have to take enforcement action against an Unrestricted Subsidiary) would permit upon
notice, lapse of time or both any holder of any other Indebtedness of the Issuer or any
Restricted Subsidiary to declare a default on the other Indebtedness or cause the payment
thereof to be accelerated or payable prior to its Stated Maturity.
Note Custodian means the Person appointed as custodian for the Depositary with respect to
the Global Notes, or any successor entity thereto.
Notes means the Initial Notes and any Additional Notes, including any Exchange Notes issued
in exchange therefor. The Initial Notes and the Additional Notes (including any Exchange Notes
issued in exchange therefor), if any, shall be treated as a single class for all purposes under
this Indenture.
Obligation means any principal, interest, penalties, fees, indemnification, reimbursements,
costs, expenses, damages and other liabilities payable under the documentation governing any
Indebtedness.
Offering Circular means the Issuers offering circular, dated May 26, 2011, relating to the
offer and sale of the Initial Notes.
Officer means any of the following of the Issuer or any Guarantor: the Chairman of the Board
of Directors, the Chief Executive Officer, the Chief Financial Officer, the President, any Vice
President, the Treasurer or the Secretary.
Officers Certificate means a certificate signed by two Officers that meets the requirements
of Section 11.5 of this Indenture.
Opinion of Counsel means a written opinion from legal counsel acceptable to the Trustee. The
counsel may be an employee of or counsel to the Issuer or the Trustee.
Pari Passu Indebtedness means any Indebtedness of the Issuer or any Guarantor that is not
Subordinated Indebtedness.
16
Participant means, with respect to the Depositary, a Person who has an account with the
Depositary.
Paying Agent means any Person authorized by the Issuer to pay the principal of, premium, if
any, or interest on any Notes on behalf of the Issuer.
Permitted Business means the businesses engaged in by the Issuer and its Subsidiaries on the
Issue Date as described in the Offering Circular and businesses that are reasonably related,
incidental or ancillary thereto or reasonable extensions thereof.
Permitted Investment means:
(1) Investments by the Issuer or any Restricted Subsidiary in (a) any Restricted
Subsidiary or (b) any Person that will become immediately after such Investment a Restricted
Subsidiary or that will merge or consolidate into the Issuer or any Restricted Subsidiary
and any Investment held by any such Person at such time that was not incurred in
contemplation of such acquisition, merger or consolidation;
(2) Investments in the Issuer by any Restricted Subsidiary;
(3) loans and advances to directors, employees and officers of the Issuer and its
Restricted Subsidiaries (i) in the ordinary course of business (including payroll, travel
and entertainment related advances) (other than any loans or advances to any director or
executive officer (or equivalent thereof) that would be in violation of Section 402 of the
Sarbanes Oxley Act) and (ii) to purchase Equity Interests of the Issuer not in excess of
$2.5 million individually and $5.0 million in the aggregate outstanding at any one time;
(4) Hedging Obligations entered into in the ordinary course of business for bona fide
hedging purposes of the Issuer or any Restricted Subsidiary not for the purpose of
speculation;
(5) Investments in cash and Cash Equivalents;
(6) receivables owing to the Issuer or any Restricted Subsidiary if created or acquired
in the ordinary course of business and payable or dischargeable in accordance with customary
trade terms; provided, however, that such trade terms may include such concessionary trade
terms as the Issuer or any such Restricted Subsidiary deems reasonable under the
circumstances;
(7) Investments in securities of trade creditors or customers received pursuant to any
plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such
trade creditors or customers or received in compromise or resolution of litigation,
arbitration or other disputes with such parties;
(8) Investments made by the Issuer or any Restricted Subsidiary as a result of
consideration received in connection with an Asset Sale made in compliance with Section
4.10;
17
(9) lease, utility and other similar deposits in the ordinary course of business;
(10) stock, obligations or securities received in settlement of debts created in the
ordinary course of business and owing to the Issuer or any Restricted Subsidiary or in
satisfaction of judgments;
(11) Permitted Joint Venture Investments made by the Issuer or any of its Restricted
Subsidiaries, in an aggregate amount (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken together with all other
Investments made pursuant to this clause (11) and then outstanding, that does not exceed the
greater of (a) $50.0 million or (b) 2.0% of the Issuers Consolidated Tangible Assets
determined at the time of investment;
(12) guarantees of Indebtedness of the Issuer or any of its Restricted Subsidiaries
permitted in accordance with Section 4.9;
(13) repurchases of, or other Investments in, the Notes;
(14) advances or extensions of credit in the nature of accounts receivable arising from
the sale or lease of goods or services, the leasing of equipment or the licensing of
property in the ordinary course of business and payable or dischargeable in accordance with
customary trade terms; provided that such trade terms may include such concessionary trade
terms as the Issuer or the applicable Restricted Subsidiary deems reasonable under the
circumstances;
(15) Investments existing on the Issue Date or made pursuant to commitments in effect
on the Issue Date;
(16) Investments the payment for which consists of Equity Interests (exclusive of
Disqualified Equity Interests) of the Issuer; provided, however, that such Equity Interests
will not increase the amount available for Restricted Payments under the Restricted Payments
Basket;
(17) other Investments in any Person having an aggregate Fair Market Value (measured on
the date each such Investment was made and without giving effect to subsequent changes in
value) that, when taken together with all other Investments made pursuant to this clause
(17) since the Issue Date and then outstanding, do not exceed the greater of (a) $150.0
million or (b) 5.0% of the Issuers Consolidated Tangible Assets determined at the time of
investment; and
(18) performance guarantees of any trade or non-financial operating contract (other
than such contract that itself constitutes Indebtedness) in the ordinary course of business.
In determining whether any Investment is a Permitted Investment, the Issuer may allocate or
reallocate all or any portion of an Investment among the clauses of this definition and any of the
provisions of Section 4.7.
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Permitted Joint Venture Investment means, with respect to an Investment by any
specified Person, an Investment by such specified Person in any other Person engaged in a Permitted
Business (1) over which the specified Person is responsible (either directly or through a services
agreement) for day-to-day operations or otherwise has direct or indirect operational and managerial
control of such other Person, or veto power over significant management decisions affecting such
other Person and (2) of which at least 20.0% of the outstanding Equity Interests of such other
Person is at the time owned directly or indirectly by the specified Person.
Permitted Liens means the following types of Liens:
(1) Liens for taxes, assessments or governmental charges or levies not yet due and
payable or delinquent or that are being contested in good faith by appropriate proceedings;
provided that adequate reserves with respect thereto are maintained on the books of the
Issuer or its Restricted Subsidiaries, as the case may be, in conformity with GAAP;
(2) Liens in respect of property of the Issuer or any Restricted Subsidiary imposed by
law or contract, which were not incurred or created to secure Indebtedness for borrowed
money, such as carriers, warehousemens, materialmens, landlords, workmens, suppliers,
repairmens and mechanics Liens and other similar Liens arising in the ordinary course of
business, and which do not in the aggregate materially detract from the value of the
property of the Issuer or its Restricted Subsidiaries, taken as a whole, and do not
materially impair the use thereof in the operation of the business of the Issuer and its
Restricted Subsidiaries, taken as a whole;
(3) pledges or deposits made in connection therewith in the ordinary course of business
in connection with workers compensation, unemployment insurance, road transportation and
other types of social security regulations;
(4) Liens (i) incurred in the ordinary course of business to secure the performance of
tenders, bids, trade contracts, stay and customs bonds, leases, statutory obligations,
surety and appeal bonds, statutory bonds, government contracts, performance and return money
bonds and other similar obligations (exclusive of obligations for the payment of borrowed
money) or (ii) incurred in the ordinary course of business to secure liability for premiums
to insurance carriers;
(5) Liens upon specific items of inventory or other goods and proceeds of any Person
securing such Persons obligations in respect of bankers acceptances issued or created for
the account of such Person to facilitate the purchase, shipment or storage of such inventory
or other goods;
(6) Liens arising out of judgments or awards not resulting in a Default or an Event of
Default so long as such Lien is adequately bonded and any appropriate legal proceedings
which may have been duly initiated for the review of such judgment have not been finally
terminated or the period within which such proceedings may be initiated has not expired;
19
(7) easements, rights of way, restrictions (including zoning restrictions), covenants,
encroachments, protrusions and other similar charges or encumbrances, and minor title
deficiencies on or with respect to any Real Property, in each case whether now or hereafter
in existence, not (i) securing Indebtedness and (ii) in the aggregate materially interfering
with the conduct of the business of the Issuer and its Restricted Subsidiaries and not
materially impairing the use of such Real Property in such business;
(8) Liens securing reimbursement obligations with respect to commercial letters of
credit which encumber documents and other assets relating to such letters of credit and
products and proceeds thereof;
(9) Liens encumbering deposits made to secure obligations arising from statutory,
regulatory, contractual or warranty requirements of the Issuer or any Restricted Subsidiary,
including rights of offset and setoff;
(10) bankers Liens, rights of setoff and other similar Liens existing solely with
respect to cash and Cash Equivalents on deposit in one or more accounts maintained by the
Issuer or any Restricted Subsidiary, in each case granted in the ordinary course of business
in favor of the bank or banks with which such accounts are maintained, securing amounts
owing to such bank with respect to cash management and operating account arrangements,
including those involving pooled accounts and netting arrangements;
(11) any interest or title of a lessor under any lease entered into by the Issuer or
any Restricted Subsidiary in accordance with this Indenture;
(12) the filing of UCC financing statements solely as a precautionary measure in
connection with operating leases, consignments of goods or transfers of accounts, in each
case to the extent not securing performance of a payment or other obligation;
(13) Liens securing all of the Notes and Liens securing any Guarantee;
(14) Liens securing Hedging Obligations entered into for bona fide hedging purposes of
the Issuer or any Restricted Subsidiary not for the purpose of speculation;
(15) Liens existing on the Issue Date securing Indebtedness outstanding on the Issue
Date other than Liens securing the Credit Agreement; provided that (i) the aggregate
principal amount of the Indebtedness, if any, secured by such Liens does not increase; and
(ii) such Liens do not encumber any property other than the property subject thereto on the
Issue Date (plus improvements, accessions, proceeds, replacements or dividends or
distributions in respect thereof);
(16) Liens in favor of the Issuer or a Guarantor;
(17) Liens securing Indebtedness under Credit Facilities incurred and then outstanding
pursuant to Section 4.9(b)(1) and related Hedging Obligations;
(18) Liens arising pursuant to Purchase Money Indebtedness; provided that (i) the
Indebtedness secured by any such Lien (including refinancings thereof) does not
20
exceed 100.0% of the cost of the property being acquired or leased at the time of the
incurrence of such Indebtedness and (ii) any such Liens attach only to the property being
financed pursuant to such Purchase Money Indebtedness (plus improvements, accessions,
proceeds, replacements or dividends or distributions in respect thereof) and do not encumber
any other property of the Issuer or any Restricted Subsidiary.
(19) Liens securing Acquired Indebtedness permitted to be incurred under this
Indenture; provided that such Indebtedness was not incurred in connection with, or in
contemplation of, such Person becoming a Restricted Subsidiary or being acquired or merged
into the Issuer or a Restricted Subsidiary of the Issuer and the Liens do not extend to
assets not subject to such Lien at the time of acquisition (plus improvements, accessions,
proceeds, replacements or dividends or distributions in respect thereof);
(20) Liens on property of a Person existing at the time such Person is acquired or
amalgamated or merged with or into or consolidated with the Issuer or any Restricted
Subsidiary (and not created in anticipation or contemplation thereof); provided that such
Liens do not extend to property not subject to such Liens at the time of acquisition (plus
improvements, accessions, proceeds, replacements or dividends or distributions in respect
thereof);
(21) Liens to secure Indebtedness incurred to replace or refinance Indebtedness secured
by Liens referred to in the foregoing clauses (13), (15), (18), (19), (20) and this clause
(21); provided that such Liens do not extend to any additional assets (other than
improvements, accessions, proceeds, replacements or dividends or distributions in respect
thereof) and the amount of such Indebtedness is not increased except as necessary to pay
premiums or expenses incurred in connection with such refinancing;
(22) licenses of Intellectual Property granted by the Issuer or any Restricted
Subsidiary in the ordinary course of business and not interfering in any material respect
with the ordinary conduct of the business of the Issuer or such Restricted Subsidiary;
(23) Liens arising out of conditional sale, title retention, consignment or similar
arrangements for the sale of goods entered into by the Issuer or any Restricted Subsidiary
in the ordinary course of business;
(24) Liens in favor of the Trustee as provided for in this Indenture on money or
property held or collected by the Trustee in its capacity as Trustee;
(25) Liens on assets of any Foreign Restricted Subsidiary to secure Indebtedness of
such Foreign Restricted Subsidiary which Indebtedness is permitted by this Indenture;
(26) Liens securing Specified Cash Management Agreements entered into in the ordinary
course of business; and
(27) other Liens with respect to obligations which do not in the aggregate exceed at
any time outstanding the greater of (a) $150.0 million or (b) 5.0% of the
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Issuers Consolidated Tangible Assets determined at the time of incurrence of such
obligation.
Person means any individual, corporation, partnership, limited liability company, joint
venture, incorporated or unincorporated association, joint-stock company, trust, mutual fund trust,
unincorporated organization or government or other agency or political subdivision thereof or other
legal entity of any kind.
Plan of Liquidation with respect to any Person, means a plan that provides for, contemplates
or the effectuation of which is preceded or accompanied by (whether or not substantially
contemporaneously, in phases or otherwise): (1) the sale, lease, conveyance or other disposition of
all or substantially all of the assets of such Person otherwise than as an entirety or
substantially as an entirety; and (2) the distribution of all or substantially all of the proceeds
of such sale, lease, conveyance or other disposition and all or substantially all of the remaining
assets of such Person to holders of Equity Interests of such Person.
Preferred Stock means, with respect to any Person, any and all preferred or preference stock
or other Equity Interests (however designated) of such Person whether now outstanding or issued
after the Issue Date that is preferred as to the payment of dividends upon liquidation, dissolution
or winding up.
principal means, with respect to the Notes, the principal of, and premium, if any, on the
Notes.
Purchase Money Indebtedness means Indebtedness, including Capitalized Lease Obligations, of
the Issuer or any Restricted Subsidiary incurred for the purpose of financing all or any part of
the purchase price of property, plant or equipment used in the business of the Issuer or any
Restricted Subsidiary or the cost of installation, construction or improvement thereof; provided,
however, that (except in the case of Capitalized Lease Obligations) the amount of such Indebtedness
shall not exceed such purchase price or cost.
Qualified Equity Interests of any Person means Equity Interests of such Person other than
Disqualified Equity Interests; provided that such Equity Interests shall not be deemed Qualified
Equity Interests to the extent sold or owed to a Subsidiary of such Person or financed, directly or
indirectly, using funds (1) borrowed from such Person or any Subsidiary of such Person until and to
the extent such borrowing is repaid or (2) contributed, extended, guaranteed or advanced by such
Person or any Subsidiary of such Person (including, without limitation, in respect of any employee
stock ownership or benefit plan). Unless otherwise specified, Qualified Equity Interests refer to
Qualified Equity Interests of the Issuer.
Qualified Equity Offering means the issuance and sale of Qualified Equity Interests of the
Issuer (or any direct or indirect parent of the Issuer to the extent the net proceeds therefrom are
contributed to the common equity capital of the Issuer or used to purchase Qualified Equity
Interests of the Issuer), other than (a) any issuance pursuant to employee benefit plans or
otherwise in compensation to officers, directors, trustees or employees, or (b) public offerings
with respect to the Issuers Qualified Equity Interests (or options, warrants or rights with
respect thereto) registered on Form S-4 or S-8.
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Rating Category means:
(1) with respect to S&P, any of the following categories: AAA, AA, A, BBB, BB, B, CCC,
CC, C and D (or equivalent successor categories); and
(2) with respect to Moodys, any of the following categories: Aaa, Aa, A, Baa, Ba, B,
Caa, Ca, C and D (or equivalent successor categories).
Rating Decline means a decrease in the rating of the Notes by either Moodys or S&P by one
or more gradations (including gradations within Rating Categories as well as between Rating
Categories). In determining whether the rating of the Notes has decreased by one or more
gradations, gradations within Rating Categories, namely + or for S&P, and 1, 2, and 3 for
Moodys, will be taken into account; for example, in the case of S&P, a rating decline either from
BB+ to BB or BB- to B+ will constitute a decrease of one gradation.
Real Property means, collectively, all right, title and interest (including any leasehold
estate) in and to any and all parcels of or interests in real property owned, leased or operated by
any Person, whether by lease, license or other means, together with, in each case, all easements,
hereditaments and appurtenances relating thereto, all improvements and appurtenant fixtures and
equipment, all general intangibles and contract rights and other property and rights incidental to
the ownership, lease or operation thereof.
refinance means to refinance, repay, prepay, replace, renew or refund.
Refinancing Indebtedness means Indebtedness or Disqualified Stock of the Issuer or a
Restricted Subsidiary incurred in exchange for, or the proceeds of which are used to redeem,
refinance, replace, defease, discharge, refund or otherwise retire for value, in whole or in part,
any Indebtedness or Disqualified Stock of the Issuer or any Restricted Subsidiary (the Refinanced
Indebtedness); provided that:
(1) the principal amount (or accreted value, in the case of Indebtedness issued at a
discount) of the Refinancing Indebtedness does not exceed the principal amount of the
Refinanced Indebtedness plus the amount of accrued and unpaid interest on the Refinanced
Indebtedness, any premium paid to the holders of the Refinanced Indebtedness and reasonable
expenses incurred in connection with the incurrence of the Refinancing Indebtedness;
(2) the obligor of the Refinancing Indebtedness does not include any Person (other than
the Issuer or any Guarantor) that is not an obligor of the Refinanced Indebtedness;
(3) if the Refinanced Indebtedness was subordinated in right of payment to the Notes or
the Guarantees, as the case may be, then such Refinancing Indebtedness, by its terms, is
subordinate in right of payment to the Notes or the Guarantees, as the case may be, at least
to the same extent as the Refinanced Indebtedness;
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(4) the Refinancing Indebtedness has a Stated Maturity either (a) no earlier than the
Refinanced Indebtedness being repaid or amended or (b) no earlier than 91 days after the
maturity date of the Notes;
(5) the portion, if any, of the Refinancing Indebtedness that is scheduled to mature on
or prior to the maturity date of the Notes has a Weighted Average Life to Maturity at the
time such Refinancing Indebtedness is incurred that is equal to or greater than the Weighted
Average Life to Maturity of the portion of the Refinanced Indebtedness being repaid that is
scheduled to mature on or prior to the maturity date of the Notes; and
(6) the proceeds of the Refinancing Indebtedness shall be used substantially
concurrently with the incurrence thereof to redeem, refinance, replace, defease, discharge,
refund or otherwise retire for value the Refinanced Indebtedness, unless the Refinanced
Indebtedness is not then due and is not redeemable or prepayable at the option of the
obligor thereof or is redeemable or prepayable only with notice, in which case such proceeds
shall be held until the Refinanced Indebtedness becomes due or redeemable or prepayable or
such notice period lapses and then shall be used to refinance the Refinanced Indebtedness;
provided that in any event the Refinanced Indebtedness shall be redeemed, refinanced,
replaced, defeased, discharged, refunded or otherwise retired for value within one year of
the incurrence of the Refinancing Indebtedness.
Registration Rights Agreement means (1) the Registration Rights Agreement dated as of the
Issue Date among the Issuer, the Guarantors and the initial purchasers of the Initial Notes,
together with any joinder agreement executed thereafter by the Guarantors and (2) any other
registration rights agreement entered into in connection with an issuance of Additional Notes in a
private offering after the Issue Date.
Regulation S Legend means the legend identified as such in Exhibit A.
Responsible Financial or Accounting Officer of the Issuer means any one of the Chief
Financial Officer (or other principal financial officer), Treasurer or Chief Accounting Officer (or
other principal accounting officer or controller) of the Issuer.
Responsible Officer means, when used with respect to the Trustee, any officer assigned to
the Corporate Trust Office of the Trustee, including any vice president, assistant vice president,
assistant treasurer, assistant secretary, trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above designated officers
and having direct responsibility for the administration of this Indenture, and also, with respect
to a particular matter, any other officer to whom such matter is referred because of such officers
knowledge of and familiarity with the particular subject.
Restricted Notes Legend means the legend identified as such in Exhibit A.
Restricted Payment means any of the following:
(1) the declaration or payment of any dividend or any other distribution (whether made
in cash, securities or other property) on or in respect of Equity Interests of
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the Issuer or any Restricted Subsidiary or any payment made to the direct or indirect
holders (in their capacities as such) of Equity Interests of the Issuer or any Restricted
Subsidiary, including, without limitation, any payment in connection with any merger or
consolidation involving the Issuer or any of its Restricted Subsidiaries but excluding (a)
dividends or distributions payable solely in Qualified Equity Interests or through accretion
or accumulation of such dividends on such Equity Interests and (b) in the case of Restricted
Subsidiaries, dividends or distributions payable to the Issuer or to a Restricted Subsidiary
(and if such Restricted Subsidiary is not a Wholly-Owned Subsidiary, to its other holders of
its Equity Interests on a pro rata basis);
(2) the purchase, redemption, defeasance or other acquisition or retirement for value
of any Equity Interests of the Issuer or any direct or indirect parent of the Issuer held by
Persons other than the Issuer or a Restricted Subsidiary (including, without limitation, any
payment in connection with any merger or consolidation involving the Issuer);
(3) any Investment other than a Permitted Investment; or
(4) any principal payment on, purchase, redemption, defeasance, prepayment, decrease or
other acquisition or retirement for value prior to any scheduled maturity or prior to any
scheduled repayment of principal or sinking fund payment, as the case may be, in respect of
Subordinated Indebtedness (other than any such payment made within one year of any such
scheduled maturity or scheduled repayment or sinking fund payment and other than any
Subordinated Indebtedness owed to and held by the Issuer or any Restricted Subsidiary
permitted under clause (6) of the definition of Permitted Indebtedness in Section 4.9(b)
of this Indenture).
For
the avoidance of doubt, no payment with respect to the Issuers
23/8% Contingent Convertible
Senior Notes due 2025 will be deemed to be a Restricted Payment.
Restricted Subsidiary means any Subsidiary other than an Unrestricted Subsidiary.
S&P means Standard & Poors Ratings Services, a division of the McGraw-Hill Companies, Inc.,
and its successors.
SEC means the U.S. Securities and Exchange Commission.
Secretarys Certificate means a certificate signed by the Secretary of the Issuer.
Securities Act means the U.S. Securities Act of 1933, as amended.
Significant Subsidiary means any Restricted Subsidiary that would be a significant
subsidiary as defined in Rule 1-02 of Regulation S-X promulgated pursuant to the Securities Act as
such Regulation was in effect on the Issue Date.
Specified Cash Management Agreements means any agreement providing for treasury, depositary,
purchasing card or cash management services, including in connection with any
25
automated clearing house transfers of funds or any similar transactions between the Issuer or
any Restricted Subsidiary and any lender.
Stated Maturity means, with respect to any Indebtedness, the date specified in the agreement
governing or certificate relating to such Indebtedness as the fixed date on which the final payment
of principal of such Indebtedness is due and payable, including pursuant to any mandatory
redemption provision, but shall not include any contingent obligations to repay, redeem or
repurchase any such principal prior to the date originally scheduled for the payment thereof.
Subordinated Indebtedness means Indebtedness of the Issuer or any Guarantor that is
expressly subordinated in right of payment to the Notes or the Guarantees, respectively.
Subsidiary means, with respect to any Person:
(1) any corporation, limited liability company, association, trust or other business
entity of which more than 50.0% of the total voting power of the Equity Interests entitled
(without regard to the occurrence of any contingency) to vote in the election of the Board
of Directors thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of such Person (or a combination thereof);
and
(2) any partnership (a) the sole general partner or the managing general partner of
which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are such Person or of one or more Subsidiaries of such Person (or any combination
thereof).
Unless otherwise specified, Subsidiary refers to a Subsidiary of the Issuer.
TIA or Trust Indenture Act means the Trust Indenture Act of 1939 (15 U.S. Code §§
77aaa-77bbbb), as amended.
Transfer Restricted Notes means Notes that bear or are required to bear the Restricted Notes
Legend.
Treasury Rate means, as of any redemption date, the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as compiled and
published in the most recent Federal Reserve Statistical Release H.15 (519) which has become
publicly available at least two Business Days prior to the redemption date (or, if such Statistical
Release is no longer published, any publicly available source or similar market data)) most nearly
equal to the period from the redemption date to June 1, 2014; provided, however, that if the period
from the redemption date to June 1, 2014 is not equal to the constant maturity of a United States
Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by
linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average
yields of United States Treasury securities for which such yields are given, except that if the
period from the redemption date to June 1, 2014 is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant maturity of one year shall
be used.
26
Trustee has the meaning set forth in the preamble of this Indenture and any successor
thereto.
United States or U.S. means the United States of America.
Unrestricted Subsidiary means (a) any Subsidiary that at the time of determination shall be
designated an Unrestricted Subsidiary by the Board of Directors of the Issuer in accordance with
Section 4.17 and (b) any Subsidiary of an Unrestricted Subsidiary. Notwithstanding the preceding,
if at any time, any Unrestricted Subsidiary would fail to meet the requirements as an Unrestricted
Subsidiary described under Section 4.17 it shall thereafter cease to be an Unrestricted Subsidiary
for purposes of this Indenture.
U.S. Government Obligations means direct non-callable obligations of, or guaranteed by, the
United States for the payment of which guarantee or obligations the full faith and credit of the
United States is pledged.
Voting Stock with respect to any Person, means securities of any class of Equity Interests
of such Person entitling the holders thereof (whether at all times or only so long as no senior
class of stock or other relevant equity interest has voting power by reason of any contingency) to
vote in the election of members of the Board of Directors of such Person.
Weighted Average Life to Maturity when applied to any Indebtedness at any date, means the
number of years obtained by dividing (1) the sum of the products obtained by multiplying (a) the
amount of each then remaining installment, sinking fund, serial maturity or other required payment
of principal, including payment at Stated Maturity, in respect thereof by (b) the number of years
(calculated to the nearest one-twelfth) that will elapse between such date and the making of such
payment by (2) the then outstanding principal amount of such Indebtedness.
Wholly-Owned Subsidiary means a Restricted Subsidiary, all of the Equity Interests of which
(other than directors qualifying shares) are owned by the Issuer or another Wholly-Owned
Subsidiary.
SECTION 1.2. Other Definitions.
Term | Defined in Section | ||
acceleration declaration |
6.2 | ||
Act |
11.14 | ||
Affiliate Transaction |
4.11 | (a) | |
Change of Control Offer |
4.13 | ||
Change of Control Payment Date |
4.13 | ||
Change of Control Purchase Price |
4.13 | ||
Covenant Defeasance |
8.3 | ||
Coverage Ratio Exception |
4.9 | (a) | |
Deposit Trustee |
8.5 | ||
Designation |
4.17 | ||
Designation Amount |
4.17 |
27
Term | Defined in Section | ||
Event of Default |
6.1 | ||
Excess Proceeds |
4.10 | (b) | |
Four-Quarter Period |
1.1 | ||
Investment Grade Rating |
4.18 | (a) | |
Judgment Currency |
11.17 | ||
Legal Defeasance |
8.2 | ||
Net Proceeds Offer |
4.10 | (c) | |
Net Proceeds Offer Amount |
4.10(d) | ||
Net Proceeds Offer Period |
4.10 | (d) | |
Net Proceeds Purchase Date |
4.10 | (d) | |
Permitted Indebtedness |
4.9 | (b) | |
QIBs |
2.1 | (b) | |
Redesignation |
4.17 | ||
Registrar |
2.3 | ||
Regulation S |
2.1 | (b) | |
Regulation S Global Note |
2.1 | (b) | |
Restricted Payments Basket |
4.7 | (a) | |
Restricted Period |
2.15 | (a) | |
Rule 144A |
2.1 | (b) | |
Rule 144A Global Note |
2.1 | (b) | |
Successor |
5.1 | (a)(1)(b) | |
Transaction Date |
1.1 |
SECTION 1.3. Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in, and made
a part of, this Indenture.
The following TIA terms have the following meanings:
indenture securities means the Notes and any Guarantee;
indenture security holder means a Holder;
indenture to be qualified means this Indenture;
indenture trustee or institutional trustee means the Trustee; and
obligor on the Notes means the Issuer and any successor obligor upon the Notes or any
Guarantor.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference
to another statute or defined by the SEC rule under the TIA have the meanings so assigned to them
therein.
SECTION 1.4. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein;
28
(2) an accounting term not otherwise defined herein has the meaning assigned to it in
accordance with GAAP;
(3) or is not exclusive;
(4) words in the singular include the plural, and in the plural include the singular;
(5) unless otherwise specified, any reference to Section, Article or Exhibit refers to
such Section, Article or Exhibit, as the case may be, of this Indenture;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act or the Exchange Act
shall be deemed to include substitute, replacement or successor sections or rules adopted by
the SEC from time to time.
ARTICLE II
THE NOTES
THE NOTES
SECTION 2.1. Form and Dating. The Notes shall be substantially in the form of
Exhibit A attached hereto. The Notes may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Note shall be dated the date of its authentication. The
Notes will be issued in registered form, without coupons, and in denominations of $2,000 and
integral multiples of $1,000 in excess thereof. The registered Holder will be treated as the owner
of such Note for all purposes.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly
made, a part of this Indenture, and the Issuer and the Trustee, by their execution and delivery of
this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to
the extent any provision of any Note conflicts with the express provisions of this Indenture, the
provisions of this Indenture shall govern and be controlling.
(a) The Notes shall be issued initially in the form of one or more Global Notes, which
shall be deposited on behalf of the purchasers of the Notes represented thereby with the
Note Custodian, and registered in the name of the Depositary or a nominee of the Depositary,
duly executed by the Issuer and authenticated by the Trustee as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes as shall be specified
therein, and each shall provide that it shall represent the aggregate amount of outstanding
Notes from time to time endorsed thereon and that the aggregate amount of outstanding Notes
represented thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, redemptions and transfers of interests. Any endorsement of a Global Note
to reflect the amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Note Custodian, at the direction of
the Trustee, in accordance with instructions given by the Holder thereof as required by
Section 2.6.
29
(b) The Initial Notes are being issued by the Issuer only (i) to qualified
institutional buyers (as defined in Rule 144A under the Securities Act (Rule 144A))
(QIBs) and (ii) in reliance on Regulation S under the Securities Act (Regulation S).
After such initial issuance, Initial Notes that are Transfer Restricted Notes may be
transferred to QIBs in reliance on Rule 144A or outside the United States pursuant to
Regulation S or to the Issuer, in accordance with certain transfer restrictions. Initial
Notes that are offered in reliance on Rule 144A shall be issued in the form of one or more
permanent Global Notes substantially in the form set forth in Exhibit A and bear the
Restricted Notes Legend (collectively, the Rule 144A Global Note), deposited with the Note
Custodian, duly executed by the Issuer and authenticated by the Trustee as hereinafter
provided. Initial Notes that are offered in offshore transactions in reliance on Regulation
S shall be issued in the form of one or more permanent Global Notes substantially in the
form set forth in Exhibit A and bear the Regulation S Legend (collectively, the
Regulation S Global Note), deposited with the Note Custodian, duly executed by the Issuer
and authenticated by the Trustee as hereinafter provided. To the extent CUSIP numbers are
issued pursuant to Section 2.14, the Rule 144A Global Note and the Regulation S Global Note
shall each be issued with separate CUSIP numbers. The aggregate principal amount of each
Global Note may from time to time be increased or decreased by adjustments made on the
records of the Note Custodian, at the direction of the Trustee. Transfers of Notes among
QIBs and to or by purchasers pursuant to Regulation S shall be represented by appropriate
increases and decreases to the respective amounts of the appropriate Global Notes, as more
fully provided in Section 2.15.
(c) Section 2.1(b) shall apply only to Global Notes deposited with or on behalf of the
Depositary.
The Issuer shall execute and the Trustee shall, in accordance with this Section 2.1 and
Section 2.2, authenticate and deliver the Global Notes that (i) shall be registered in the
name of the Depositary or the nominee of the Depositary and (ii) shall be delivered by the
Trustee to the Depositary or pursuant to the Depositarys instructions or held by the Note
Custodian for the Depositary.
SECTION 2.2. Execution and Authentication. An Officer shall sign the Notes for the
Issuer by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office at the time a Note is
authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature of a Responsible Officer
of the Trustee. The signature of a Responsible Officer of the Trustee shall be conclusive evidence
that the Note has been authenticated under this Indenture.
The Trustee shall, upon receipt of a written order of the Issuer signed by one Officer
directing the Trustee to authenticate the Notes and certifying that all conditions precedent to the
issuance of the Notes contained herein have been complied with and receipt of an Opinion of
Counsel, authenticate Notes for original issue in the aggregate principal amount stated in such
written order.
30
The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to
authenticate Notes. Unless limited by the terms of such appointment, an authenticating agent may
authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent or agents. An authenticating
agent has the same rights as an Agent to deal with Holders or the Issuer or an Affiliate of the
Issuer.
SECTION 2.3. Registrar; Paying Agent. The Issuer shall maintain (i) an office or
agency where Notes may be presented for registration of transfer or for exchange (Registrar) and
(ii) an office or agency where Notes may be presented for payment to a Paying Agent. The Registrar
shall keep a register of the Notes and of their transfer and exchange. The Issuer may appoint one
or more co-registrars and one or more additional Paying Agents. The term Registrar includes any
co-registrar, and the term Paying Agent includes any additional Paying Agent. The Issuer may
change any Paying Agent or Registrar without notice to any Holder. The Issuer and/or any Restricted
Subsidiary may act as Paying Agent or Registrar.
The Issuer shall notify the Trustee in writing, and the Trustee shall notify the Holders, of
the name and address of any Agent not a party to this Indenture. The Issuer shall enter into an
appropriate agency agreement with any Agent not a party to this Indenture, which shall incorporate
the relevant provisions of the TIA that relate to such Agent. If the Issuer fails to appoint or
maintain a Registrar or Paying Agent, or fails to give the foregoing notice, the Trustee shall act
as such, and shall be entitled to appropriate compensation in accordance with Section 7.7.
The Issuer initially appoints the Trustee to act as the Registrar and Paying Agent, at its
Corporate Trust Office and its address in the City and State of New York.
The Issuer initially appoints DTC to act as the Depositary with respect to the Global Notes.
SECTION 2.4. Paying Agent to Hold Money in Trust. The Issuer shall require each
Paying Agent other than the Trustee to agree in writing that the Paying Agent shall hold in trust
for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Additional Interest, if any, or interest on the Notes, and shall notify the
Trustee of any Default by the Issuer in making any such payment. While any such Default continues,
the Trustee may require a Paying Agent to pay to the Trustee all money held by it in trust for the
benefit of the Holders or the Trustee. The Issuer at any time may require a Paying Agent to pay all
money held by it in trust for the benefit of the Holders or the Trustee to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Issuer or any of its Subsidiaries)
shall have no further liability for such money. If the Issuer or any of its Subsidiaries acts as
Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders
all money held by it as Paying Agent. Upon the occurrence of any of the events specified in Section
6.1, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.5. Holder Lists. The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and addresses of all
Holders and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least seven (7) Business Days before each interest
payment date and at such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses of the Holders,
including the aggregate principal amount of the Notes held by each Holder thereof, and the Issuer
shall otherwise comply with TIA § 312(a).
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SECTION 2.6. Book-Entry Provisions for Global Notes.
(a) Each Global Note shall (i) be registered in the name of the Depositary for such
Global Notes or the nominee of such Depositary, (ii) be delivered by the Trustee to the
Depositary or pursuant to the Depositarys instructions or held by the Note Custodian for
the Depositary and (iii) bear the Global Note legends as required by Section 2.6(e).
Members of, or Participants in, the Depositary shall have no rights under this
Indenture with respect to any Global Note held on their behalf by the Depositary, or the
Note Custodian, or under such Global Note, and the Depositary may be treated by the Issuer,
and the Trustee or any Agent and any of their respective agents, as the absolute owner of
such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Issuer, the Trustee or any Agent or their respective agents from giving
effect to any written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Participants, the operation of
customary practices governing the exercise of the rights of an owner of a beneficial
interest in any Global Note.
Neither the Trustee nor any Agent shall have any responsibility or obligation to any
Holder that is a member of (or a Participant in) the Depositary or any other Person with
respect to the accuracy of the records of the Depositary (or its nominee) or of any member
or Participant thereof, with respect to any ownership interest in the Notes or with respect
to the delivery of any notice (including any notice of redemption) or the payment of any
amount or delivery of any Notes (or other security or property) under or with respect to the
Notes. The Trustee and any Agent may rely (and shall be fully protected in relying) upon
information furnished by the Depositary with respect to its members, Participants and any
beneficial owners in the Notes.
Neither the Trustee nor any Agent shall have any responsibility for any actions taken
or not taken by the Depositary.
(b) Transfers of a Global Note shall be limited to transfers of such Global Note in
whole, but not in part, to the Depositary, its successors or their respective nominees.
Interests of beneficial owners in a Global Note may be transferred in accordance with
Section 2.15 and the rules and procedures of the Depositary. In addition, certificated Notes
shall be transferred to beneficial owners in exchange for their beneficial interests only if
(i) the Depositary notifies the Issuer that it is unwilling or unable to continue as
Depositary for the Global Notes or the Depositary ceases to be a clearing agency
registered under the Exchange Act and, in each case, a successor depositary is not appointed
by the Issuer within 90 days of such notice, (ii) an Event of Default of which a Responsible
Officer of the Trustee has actual notice has occurred and
32
is continuing and the Registrar has received a request from any Holder of a Global Note
to issue such certificated Notes or (iii) the Issuer, in its sole discretion, notifies the
Trustee that it elects to cause the issuance of certificated Notes.
(c) In connection with the transfer of an entire Global Note to beneficial owners
pursuant to Section 2.6(b), such Global Note shall be deemed to be surrendered to the
Trustee for cancellation, and the Issuer shall execute, and the Trustee shall authenticate
and deliver to each beneficial owner identified by the Depositary in exchange for its
beneficial interest in such Global Note an equal aggregate principal amount of certificated
Notes of authorized denominations.
(d) The registered Holder of a Global Note may grant proxies and otherwise authorize
any Person, including Participants and Persons that may hold interests through Participants,
to take any action which a Holder is entitled to take under this Indenture or the Notes.
(e) Each Global Note shall bear the Global Note Legend on the face thereof.
(f) At such time as all beneficial interests in Global Notes have been exchanged for
certificated Notes, redeemed, repurchased or cancelled, all Global Notes shall be returned
to or retained and cancelled by the Trustee in accordance with Section 2.11. At any time
prior to such cancellation, if any beneficial interest in a Global Note is exchanged for
certificated Notes, redeemed, repurchased or cancelled, the principal amount of Notes
represented by such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note, by the Trustee or the Note Custodian, at the direction of the
Trustee, to reflect such reduction.
(g) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Issuer shall
execute and the Trustee shall authenticate Global Notes and certificated Notes at
the Registrars request.
(2) No service charge shall be made to a Holder for any registration of
transfer or exchange, but the Issuer may require payment of a sum sufficient to
cover any stamp or transfer tax or similar governmental charge payable in connection
therewith (other than any such stamp or transfer taxes or similar governmental
charge payable upon exchange or transfer pursuant to Section 2.6(h), Section 2.10,
Section 3.6, Section 4.10, Section 4.13 or Section 9.5).
(3) All Global Notes and certificated Notes issued upon any registration of
transfer or exchange of Global Notes or certificated Notes shall be the valid
obligations of the Issuer, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Global Notes (or interests therein) or
certificated Notes surrendered upon such registration of transfer or exchange.
(4) The Registrar is not required (A) to issue, to register the transfer of or
to exchange Notes during a period beginning at the opening of 15 days before
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the day of any selection of Notes for redemption and ending at the close of
business on the day of such selection, (B) to register the transfer of or to
exchange any Note so selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part, or (C) to register the
transfer of or to exchange a Note between a record date and the next succeeding
interest payment date.
(5) Prior to due presentment for the registration of a transfer of any Note,
the Trustee, any Agent and the Issuer may deem and treat the Person in whose name
any Note is registered as the absolute owner of such Note for the purpose of
receiving payment of principal of and interest on such Notes and for all other
purposes, and none of the Trustee, any Agent, or the Issuer shall be affected by
notice to the contrary.
(6) The Trustee shall authenticate Global Notes and certificated Notes in
accordance with the provisions of Section 2.2. Except as provided in Section 2.6(b),
neither the Trustee nor the Registrar shall authenticate or deliver any certificated
Note in exchange for a Global Note.
(7) Each Holder agrees to indemnify the Issuer and the Trustee against any
liability that may result from the transfer, exchange or assignment of such Holders
Note in violation of any provision of this Indenture and/or applicable United States
federal or state securities law.
(8) Neither the Trustee nor any Agent shall have any obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any transfer of
any interest in any Note (including any transfers between or among Participants or
beneficial owners of interests in any Global Note) other than to require delivery of
such certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with the express
requirements hereof.
(h) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance
with the Registration Rights Agreement, the Issuer shall issue and, upon receipt of a
written order of the Issuer in accordance with Section 2.2, the Trustee shall authenticate
(i) one or more unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of the beneficial interests in the Global Notes accepted for exchange by
the Issuer and (ii) unrestricted certificated Notes in an aggregate principal amount equal
to the principal amount of the certificated Notes that are accepted for exchange in the
Exchange Offer, all as set forth in the written instructions of the Issuer. Concurrently
with the issuance of such Notes, the Trustee shall cause the aggregate principal amount of
the Global Notes to be reduced in accordance with the beneficial interests tendered in the
Exchange Offer, and the Trustee shall deliver to the Persons designated by the Issuer the
unrestricted Global Notes or unrestricted certificated Notes,
34
as the case may be, issued and authenticated in accordance with the preceding sentence
in the principal amounts specified by the Issuer.
SECTION 2.7. Replacement Notes. If any mutilated Note is surrendered to the Trustee,
or the Issuer and the Trustee receive evidence to their satisfaction of the destruction, loss or
theft of any Note, the Issuer shall issue and the Trustee, upon the written order of the Issuer
signed by an Officer of the Issuer, shall authenticate a replacement Note if the Trustees
requirements are met. If required by the Trustee or the Issuer, an indemnity bond must be supplied
by the Holder that is sufficient in the judgment of the Trustee and the Issuer to protect the
Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may
suffer if a Note is replaced. The Issuer, the Trustee and the Agents may charge for their expenses
in replacing a Note.
Every replacement Note is an additional obligation of the Issuer and shall be entitled to all
of the benefits of this Indenture equally and proportionately with all other Notes duly issued
hereunder.
SECTION 2.8. Outstanding Notes. The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the Trustee in
accordance with the provisions hereof, and those described in this Section 2.8 as not outstanding.
Except as set forth in Section 2.9, a Note does not cease to be outstanding because the Issuer or
an Affiliate of the Issuer holds the Note.
If a Note is replaced pursuant to Section 2.7, it ceases to be outstanding unless the Trustee
receives proof satisfactory to it that the replaced Note is held by a protected purchaser.
If the Paying Agent (other than the Issuer, a Subsidiary or an Affiliate of any thereof)
holds, on any payment date, money sufficient to pay the amounts under the Notes payable on that
date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall
cease to accrue interest.
SECTION 2.9. Treasury Notes. In determining whether the Holders of the required
aggregate principal amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Issuer or by any Affiliate of the Issuer shall be considered as though not outstanding,
except that for the purposes of determining whether the Trustee shall be protected in relying on
any such direction, waiver or consent, only Notes of which a Responsible Officer of the Trustee has
written notice as being so owned shall be so disregarded. Notwithstanding the foregoing, Notes that
are to be acquired by the Issuer or an Affiliate of the Issuer pursuant to an exchange offer,
tender offer or other agreement shall not be deemed to be owned by such entity until legal title to
such Notes passes to such entity.
SECTION 2.10. Temporary Notes. Until certificated Notes are ready for delivery, the
Issuer may prepare and the Trustee shall authenticate temporary Notes upon a written order of the
Issuer signed by one Officer of the Issuer. Temporary Notes shall be substantially in the form of
certificated Notes but may have variations that the Issuer considers appropriate for temporary
Notes. Without unreasonable delay, the Issuer shall prepare and the Trustee shall upon receipt of
35
a written order of the Issuer signed by one Officer, authenticate certificated Notes in
certificate form in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of this Indenture.
SECTION 2.11. Cancellation. The Issuer at any time may deliver to the Trustee for
cancellation any Notes previously authenticated and delivered hereunder or which the Issuer may
have acquired in any manner whatsoever, and all Notes so delivered shall be promptly cancelled by
the Trustee. All Notes surrendered for registration of transfer, exchange or payment, if
surrendered to any Person other than the Trustee, shall be delivered to the Trustee. The Trustee
and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment,
replacement or cancellation. Subject to Section 2.7, the Issuer may not issue new Notes to replace
Notes that it has redeemed or paid or that have been delivered to the Trustee for cancellation. All
cancelled Notes held by the Trustee shall be disposed of in accordance with its customary practice,
and certification of their disposal delivered to the Issuer upon its written request therefor.
SECTION 2.12. Defaulted Interest. If the Issuer defaults in a payment of interest on
the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special
record date, which date shall be the earliest practicable date but in all events at least five (5)
Business Days prior to the payment date, in each case at the rate provided in the Notes and in
Section 4.1. The Issuer shall fix or cause to be fixed each such special record date and payment
date and shall promptly thereafter notify the Trustee of any such date. At least 15 days before the
special record date, the Issuer (or the Trustee, in the name and at the expense of the Issuer)
shall mail or cause to be mailed to Holders a notice that states the special record date, the
related payment date and the amount of such interest to be paid.
SECTION 2.13. Computation of Interest. Interest and Additional Interest, if any, on
the Notes shall be computed on the basis of a 360-day year comprised of twelve 30-day months.
SECTION 2.14. CUSIP Number. The Issuer in issuing the Notes may use a CUSIP
number, and if it does so, the Trustee shall use the CUSIP number in notices of redemption or
exchange as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number printed in the notice
or on the Notes and that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption or exchange shall not be affected by any defect in or omission
of such numbers. The Issuer shall promptly notify the Trustee in writing of any change in any CUSIP
number.
SECTION 2.15. Special Transfer Provisions. Each Note issued pursuant to an exemption
from registration under the Securities Act (other than in reliance on Regulation S) will constitute
a Transfer Restricted Note and be required to bear the Restricted Notes Legend until the date that
is one year after the later of the date of original issue and the last date on which the Issuer or
any affiliate (within the meaning of Rule 405 under the Securities Act) of the Issuer was the owner
of such Notes (or any predecessor thereto), unless and until such Transfer
36
Restricted Note is transferred or exchanged pursuant to an effective registration statement
under the Securities Act.
(a) Transfers to QIBs. The following provisions shall apply with respect to
the registration of any proposed transfer of a Note issued in reliance on Regulation S to a
QIB:
(1) The Registrar shall register the transfer of a Note issued in reliance on
Regulation S by a Holder to a QIB if such transfer is being made by a proposed
transferor who has provided the Registrar with (a) an appropriately completed
certificate of transfer in the form attached to the Note and (b) a letter
substantially in the form set forth in Exhibit C from the proposed
transferor; provided that the letter required by this clause (b) shall only be
required on or prior to the 40th day after the later of the commencement of the
offering of such Note and the issue date of such Note (such period through and
including such 40th day, the Restricted Period). The Issuer shall provide written
notice to the Trustee of the date that constitutes the final day of the Restricted
Period in respect of any Notes issued in reliance on Regulation S; provided,
however, that no such notice shall be required with respect to any Initial Notes
issued in reliance on Regulation S, and July 11, 2011 shall constitute the final day
of the Restricted Period for such Initial Notes.
(2) If the proposed transferee is a Participant and the Note to be transferred
consists of an interest in the Regulation S Global Note, upon receipt by the
Registrar of (x) the items required by paragraph (i) above and (y) instructions
given in accordance with the Depositarys and the Registrars procedures therefor,
the Registrar shall reflect on its books and records the date and an increase in the
principal amount of the Rule 144A Global Note in an amount equal to the principal
amount of the beneficial interest in the Regulation S Global Note to be so
transferred, and the Registrar shall reflect on its books and records the date and a
corresponding decrease in the principal amount of such Regulation S Global Note in
an amount equal to the principal amount of the beneficial interest in such
Regulation S Global Note to be so transferred.
(b) Transfers Pursuant to Regulation S. The following provisions shall apply
with respect to registration of any proposed transfer of a Transfer Restricted Note pursuant
to Regulation S:
(1) The Registrar shall register any proposed transfer of a Transfer Restricted
Note by a Holder pursuant to Regulation S upon receipt of (a) an appropriately
completed certificate of transfer in the form attached to the Note and (b) a letter
substantially in the form set forth in Exhibit D hereto from the proposed
transferor.
(2) If the proposed transferee is a Participant and the Transfer Restricted
Note to be transferred consists of an interest in the Rule 144A Global Note upon
receipt by the Registrar of (x) the letter, if any, required by paragraph
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(i) above and (y) instructions in accordance with the Depositarys and the
Registrars procedures therefor, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the Regulation S Global
Note in an amount equal to the principal amount of the beneficial interest in the
Rule 144A Global Note to be transferred, and the Registrar shall reflect on its
books and records the date and a corresponding decrease in the principal amount of
the Rule 144A Global Note in an amount equal to the principal amount of the
beneficial interest in such Rule 144A Global Note to be transferred.
(c) In the event that a Global Note is exchanged for Notes in certificated, registered
form pursuant to Section 2.6, such Notes may be exchanged only in accordance with such
procedures as are substantially consistent with the provisions of clauses (a) and (b) of
this Section 2.15 above (including the certification requirements intended to ensure that
such transfers comply with Rule 144A or Regulation S, as the case may be) and such other
procedures as may from time to time be adopted by the Issuer and notified to the Trustee in
writing.
(d) Restricted Notes Legend. Upon the transfer, exchange or replacement of
Notes not bearing the Restricted Notes Legend, the Registrar shall deliver Notes that do not
bear the Restricted Notes Legend. Upon the transfer, exchange or replacement of Notes
bearing the Restricted Notes Legend, the Registrar shall deliver only Notes that bear the
Restricted Notes Legend unless there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Issuer to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the provisions of
the Securities Act.
(e) Regulation S Legend. Upon the transfer, exchange or replacement of Notes
not bearing the Regulation S Legend, the Registrar shall deliver Notes that do not bear the
Regulation S Legend. Upon the transfer, exchange or replacement of Notes bearing the
Regulation S Legend, the Registrar shall deliver only Notes that bear the Regulation S
Legend unless there is delivered to the Registrar an Opinion of Counsel reasonably
satisfactory to the Issuer to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with the provisions of
the Securities Act.
(f) General. By its acceptance of any Note bearing the Restricted Notes Legend
or the Regulation S Legend, as applicable, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture and in the Restricted
Notes Legend or the Regulation S Legend, as applicable, and agrees that it shall transfer
such Note only as provided in this Indenture. A transfer of a beneficial interest in a
Global Note that does not involve an exchange of such interest for a certificated Note or a
beneficial interest in another Global Note shall be subject to compliance with applicable
law and the applicable procedures of the Depositary but is not subject to any procedure
required by this Indenture.
In connection with any proposed transfer pursuant to Regulation S or pursuant to any other
available exemption from the registration requirements of the Securities Act (other than
38
pursuant to Rule 144A), the Issuer may require the delivery of an Opinion of Counsel, other
certifications or other information satisfactory to the Issuer.
The Registrar shall retain copies of all letters, notices and other written communications
received pursuant to this Section 2.15.
SECTION 2.16. Issuance of Additional Notes. The Issuer shall be entitled to issue
Additional Notes, including Exchange Notes issued in exchange therefor, in an unlimited aggregate
principal amount under this Indenture that shall have identical terms as the Initial Notes, other
than with respect to the date of issuance, issue price, amount of interest payable on the first
interest payment date applicable thereto, transfer restrictions, any registration rights agreement
and additional interest with respect thereto; provided that such issuance is not prohibited by the
terms of this Indenture, including Section 4.9. The Initial Notes and any Additional Notes or
Exchange Notes shall be treated as a single class for all purposes under this Indenture.
With respect to any Additional Notes, the Issuer shall set forth in an Officers Certificate,
a copy of which shall be delivered to the Trustee, the following information:
(1) the aggregate principal amount of such Additional Notes to be authenticated and delivered
pursuant to this Indenture;
(2) the issue price, the issue date, the CUSIP number of such Additional Notes, the first
interest payment date and the amount of interest payable on such first interest payment date
applicable thereto and the date from which interest shall accrue;
(3) whether such Additional Notes shall be Transfer Restricted Notes; and
(4) that such issuance is not prohibited by this Indenture.
The Trustee shall, upon receipt of the Officers Certificate, authenticate the Additional
Notes in accordance with the provisions of Section 2.2 of this Indenture.
ARTICLE III
REDEMPTION AND PREPAYMENT
REDEMPTION AND PREPAYMENT
SECTION 3.1. Notices to Trustee. If the Issuer elects to redeem Notes pursuant to
the optional redemption provisions of Section 3.7, it shall furnish to the Trustee, at least 30
days (or such shorter period as is acceptable to the Trustee) before a redemption date, an
Officers Certificate setting forth the (i) section of this Indenture pursuant to which the
redemption shall occur, (ii) redemption date and (iii) principal amount of Notes to be redeemed.
SECTION 3.2. Selection of Notes to Be Redeemed. If less than all of the Notes are to
be redeemed at any time, the Trustee shall select the Notes to be redeemed among the Holders in
compliance with the requirements of the principal national securities exchange, if any, on which
the Notes are listed or, if the Notes are not so listed, on a pro rata basis, by lot or by such
method as the Trustee, in its sole discretion, shall deem fair and appropriate (subject to the
procedures of the Depositary and in a manner that complies with applicable legal requirements);
provided,
39
however that no Notes of $2,000 in original principal amount or less shall be redeemed in
part. In addition, if a partial redemption is made pursuant to Section 3.7(c), selection of the
Notes or portions thereof for redemption shall be made by the Trustee only on a pro rata basis or
on as nearly a pro rata basis as is practicable (subject to the procedures of the Depositary),
unless that method is otherwise prohibited.
On and after the redemption date, interest will cease to accrue on Notes or portions of them
called for redemption so long as the Issuer has deposited with the Paying Agent funds in
satisfaction of the applicable redemption price pursuant to this Indenture (including accrued and
unpaid interest on the Notes to be redeemed). The Trustee shall promptly notify the Issuer in
writing of the Notes selected for redemption. The Trustee may select for redemption portions (equal
to $1,000 or any integral multiples of $1,000 thereof) of the principal of the Notes that have
denominations larger than $2,000.
SECTION 3.3. Notice of Redemption. The Issuer shall deliver or cause to be delivered
in accordance with Section 11.2, a notice of redemption to each Holder whose Notes are to be
redeemed (with a copy to the Trustee), at least 30 days but not more than 60 days before a
redemption date (except that notices may be delivered more than 60 days before a redemption date if
the notice is issued in accordance with Section 8.8).
The notice shall identify the Notes to be redeemed and shall state:
(1) the redemption date;
(2) the redemption price (or the method by which it is to be determined);
(3) if any Note is being redeemed in part, the portion of the principal amount of such
Note to be redeemed and that, after the redemption date, upon surrender of such Note, a new
Note or Notes in principal amount equal to the unredeemed portion shall be issued upon
cancellation of the original Note (or appropriate adjustments to the amount and beneficial
interests in a Global Note will be made, as appropriate);
(4) the name and address of the Trustee;
(5) that Notes called for redemption must be surrendered to the Trustee to collect the
redemption price;
(6) that, unless the Issuer defaults in making such redemption payment, interest, if
any, on Notes called for redemption ceases to accrue on and after the redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture pursuant to which the
Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or accuracy of the CUSIP
number, if any, listed in such notice or printed on the Notes.
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At the Issuers written request, the Trustee shall give the notice of redemption in the
Issuers name and at the Issuers expense; provided, however, that the Issuer shall have delivered
to the Trustee, at least 15 days prior to the date of the giving of the notice of redemption (or
such shorter period as is acceptable to the Trustee), an Officers Certificate requesting that the
Trustee give such notice and setting forth the information to be stated in the notice as provided
in the preceding paragraph. The notice mailed in the manner herein provided shall be deemed to have
been duly given whether or not the Holder receives such notice. In any case, failure to give such
notice or any defect in the notice to the Holder of any Note shall not affect the validity of the
proceeding for the redemption of any other Note.
SECTION 3.4. Effect of Notice of Redemption. Except with respect to notices of
redemption given in accordance with Section 3.7(c), once notice of redemption is delivered in
accordance with Section 3.3, Notes called for redemption become due and payable on the redemption
date at the applicable redemption price.
SECTION 3.5. Deposit of Redemption Price. On or before 11:00 a.m. (New York City
time) on the redemption date, the Issuer shall deposit with the Trustee or with the Paying Agent
(other than the Issuer or an Affiliate of the Issuer) money sufficient to pay the redemption price
on all Notes to be redeemed on that date. The Trustee or the Paying Agent shall promptly return to
the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the
amounts necessary to pay the redemption price of all Notes to be redeemed.
If Notes called for redemption or tendered in a Net Proceeds Offer or Change of Control Offer
are paid or if the Issuer has deposited with the Trustee or Paying Agent money sufficient to pay
the redemption or purchase price of, and unpaid and accrued interest and Additional Interest, if
any, on, all Notes to be redeemed or purchased, on and after the redemption or purchase date,
interest and Additional Interest, if any, shall cease to accrue on the Notes or the portions of
Notes called for redemption or tendered and not withdrawn in a Net Proceeds Offer or Change of
Control Offer (regardless of whether certificates for such securities are actually surrendered). If
a Note is redeemed or purchased on or after an interest record date but on or prior to the related
interest payment date, then any accrued and unpaid interest and Additional Interest, if any, shall
be paid to the Person in whose name such Note was registered at the close of business on such
record date. If any Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Issuer to comply with the preceding paragraph, interest and
Additional Interest, if any, shall be paid on the unpaid principal from the redemption or purchase
date until such principal is paid, and to the extent lawful on any interest and Additional
Interest, if any, not paid on such unpaid principal, in each case, at the rate provided in the
Notes and in Section 4.1.
SECTION 3.6. Notes Redeemed in Part. Upon surrender and cancellation of a Note that
is redeemed in part, the Issuer shall issue and, upon the written request of an Officer of the
Issuer, the Trustee shall authenticate for the Holder at the expense of the Issuer a new Note equal
in principal amount to the unredeemed portion of the Note surrendered and canceled; provided that
each such new Note will be in a principal amount of $2,000 or integral multiples of $1,000 in
excess thereof.
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SECTION 3.7. Optional Redemption.
(a) The Notes may be redeemed, in whole or in part, at any time prior to June 1, 2014
at the option of the Issuer, at a redemption price equal to 100.0% of the principal amount
of the Notes redeemed plus the Applicable Premium (calculated by the Issuer) as of, and
accrued and unpaid interest and Additional Interest, if any, to, the applicable redemption
date (subject to the right of Holders of record on the relevant record date to receive
interest due on the relevant interest payment date). The Issuer will calculate the Treasury
Rate and Applicable Premium and prior to the redemption date file an Officers Certificate
with the Trustee setting forth the Treasury Rate and Applicable Premium and showing the
calculation of each in reasonable detail.
(b) The Notes are subject to redemption, at the option of the Issuer, in whole or in
part, at any time or from time to time on or after June 1, 2014, at the redemption prices
(expressed as percentages of the principal amount of Notes to be redeemed) set forth below,
plus accrued and unpaid interest and Additional Interest thereon, if any, to the applicable
redemption date (subject to the right of Holders on the relevant record date to receive
interest due on the relevant interest payment date), if redeemed during the 12-month period
beginning June 1 of the years indicated below:
Year | Redemption Price | |||
2014 |
104.875 | % | ||
2015 |
103.250 | % | ||
2016 |
101.625 | % | ||
2017 and thereafter |
100.000 | % |
(c) At any time or from time to time prior to June 1, 2014, the Issuer, at its option,
may on any one or more occasions redeem up to 35.0% of the principal amount of the
outstanding Notes issued under this Indenture (calculated after giving effect to any
issuance of Additional Notes) with the net cash proceeds of one or more Qualified Equity
Offerings at a redemption price equal to 106.500% of the principal amount of the Notes to be
redeemed, plus accrued and unpaid interest and Additional Interest thereon, if any, to the
date of redemption (subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date); provided that:
(1) at least 65.0% of the aggregate principal amount of Notes issued under this
Indenture on the Issue Date remains outstanding immediately after giving effect to
any such redemption; and
(2) the redemption occurs not more than 180 days after the date of the closing
of any such Qualified Equity Offering.
42
ARTICLE IV
COVENANTS
COVENANTS
SECTION 4.1. Payment of Notes.
(a) The Issuer shall pay or cause to be paid the principal of, premium, if any, and
interest on the Notes on the dates and in the manner provided in the Notes. Principal,
premium, if any, and interest shall be considered paid for all purposes hereunder on the
date the Trustee or the Paying Agent (if other than the Issuer or a Subsidiary thereof)
holds, as of 11:00 a.m. (New York City time) on the relevant payment date, U.S. dollars
deposited by the Issuer in immediately available funds and designated for and sufficient to
pay all such principal, premium, if any, and interest then due. The Issuer shall pay all
Additional Interest, if any, in the same manner on the dates and amounts set forth in the
Registration Rights Agreement.
(b) The Issuer shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal at the rate equal to the then applicable
interest rate on the Notes to the extent lawful; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments
of interest and Additional Interest, if any (without regard to any applicable grace period),
at the same rate to the extent lawful.
(c) In the event the Issuer is required to pay Additional Interest pursuant to any
Registration Rights Agreement, the Issuer will provide written notice to the Trustee of the
Issuers obligation to pay Additional Interest no later than 15 days prior to the next
interest payment date, which notice shall set forth the amount of Additional Interest to be
paid by the Issuer. The Trustee shall not at any time be under any duty or responsibility to
the Issuer, any Holders or any other Person to determine whether such Additional Interest is
payable or the amount thereof.
SECTION 4.2. Maintenance of Office or Agency. The Issuer shall maintain an office or
agency where Notes may be surrendered for registration of transfer or for exchange and where
notices and demands to or upon the Issuer and Guarantors in respect of the Notes and this Indenture
may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Issuer shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Issuer may also from time to time designate one or more other offices or agencies where
the Notes may be presented or surrendered for any or all such purposes and may from time to time
rescind such designations. The Issuer shall give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other office or agency.
The Issuer hereby designates the Corporate Trust Office of the Trustee as one such office or
agency of the Issuer in accordance with Section 2.3.
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SECTION 4.3. Provision of Financial Information. Whether or not required by the SEC,
so long as any Notes are outstanding, the Issuer will furnish to the Trustee and the Holders, or,
to the extent permitted by the SEC, file electronically with the SEC through the SECs Electronic
Data Gathering, Analysis and Retrieval System (or any successor system) within the time periods
specified in the SECs rules and regulations:
(1) all quarterly and annual reports that would be required to be filed with the SEC on
Forms 10-Q and 10-K if the Issuer were required to file such reports; and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if
the Issuer were required to file such reports.
If the Issuer has designated any of its Subsidiaries as Unrestricted Subsidiaries, and such
Unrestricted Subsidiaries, individually or taken together, would constitute a Significant
Subsidiary, then the quarterly and annual financial information required by this Section 4.3 will
include a reasonably detailed presentation, either on the face of the financial statements or in
the footnotes thereto, and in Managements Discussion and Analysis of Financial Condition and
Results of Operations, of the financial condition and results of operations of the Issuer and its
Restricted Subsidiaries excluding the Unrestricted Subsidiaries.
For so long as any Notes remain outstanding, the Issuer shall furnish to the Holders and to
securities analysts and prospective investors, upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) under the Securities Act.
The Issuer will be deemed to have furnished such reports to the Trustee and the Holders if it
has filed such reports with the SEC using the EDGAR filing system or if it has made such reports
publicly available on its website. The furnishing of the above reports to the Trustee is for
informational purposes only and the Trustees receipt of such reports shall not constitute
constructive notice of any information contained therein or determinable from information contained
therein, including the Issuers compliance with any of its covenants in this Indenture (as to which
the Trustee is entitled to rely exclusively on Officers Certificates) or any other agreement or
document.
SECTION 4.4. Compliance Certificate. The Issuer shall deliver to the Trustee, within
90 days after the end of each fiscal year beginning with the fiscal year ending December 31, 2011,
an Officers Certificate stating that a review of the activities of the Issuer and its Subsidiaries
during the preceding fiscal year has been made under the supervision of the signing Officers with a
view to determining whether each has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such certificate, that, to his
or her knowledge, each entity has kept, observed, performed and fulfilled each and every covenant
contained in this Indenture and is not in default in the performance or observance of any of the
terms, provisions and conditions of this Indenture (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which he or she may have knowledge
and what action the Issuer is taking or proposes to take with respect thereto) and that, to his or
her knowledge, no event has occurred and remains in existence by reason of which payments on
account of the principal of, premium, if any, or interest or Additional Interest, if
44
any, on the Notes is prohibited or if such event has occurred, a description of the event and
what action the Issuer is taking or proposes to take with respect thereto.
The Issuer shall, so long as any of the Notes are outstanding, deliver to the Trustee, within
30 days after any Officer becomes aware of any Default or Event of Default, an Officers
Certificate specifying such Default or Event of Default and what action the Issuer is taking or
proposes to take with respect thereto.
SECTION 4.5. Taxes. The Issuer shall pay, and shall cause each of its Subsidiaries
to pay, prior to delinquency all material taxes, assessments and governmental levies, except such
as are contested in good faith and by appropriate proceedings and with respect to which appropriate
reserves have been taken in accordance with GAAP or where the failure to effect such payment is not
adverse in any material respect to the Holders of the Notes.
SECTION 4.6. Stay, Extension and Usury Laws. The Issuer and each of the Guarantors
covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension
or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants
or the performance of this Indenture, and the Issuer and each of the Guarantors (to the extent that
it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law has been enacted.
SECTION 4.7. Limitation on Restricted Payments.
(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, make any Restricted Payment if at the time of such Restricted Payment:
(1) a Default shall have occurred and be continuing or shall occur as a
consequence thereof;
(2) the Issuer is not able to incur at least $1.00 of additional Indebtedness
pursuant to the Coverage Ratio Exception; or
(3) the amount of such Restricted Payment, when added to the aggregate amount
of all other Restricted Payments made after the Issue Date (other than Restricted
Payments made pursuant to clauses (2) through (12) of Section 4.7(b)), exceeds the
sum (the Restricted Payments Basket) of (without duplication):
(A) 50.0% of Consolidated Net Income of the Issuer and the Restricted
Subsidiaries for the period (taken as one accounting period) commencing on
April 1, 2011 to and including the last day of the fiscal quarter ended
immediately prior to the date of such calculation for which consolidated
financial statements are available (or, if such Consolidated Net Income
shall be a deficit, minus 100.0% of such deficit), plus
45
(B) 100.0% of (A) (i) the aggregate net cash proceeds and (ii)
the Fair Market Value of (x) marketable securities (other than marketable
securities of the Issuer), (y) Equity Interests of a Person (other than the
Issuer or a Subsidiary of the Issuer) engaged in a Permitted Business and
(z) other assets used in any Permitted Business, received by the Issuer or
its Restricted Subsidiaries after the Issue Date, in each case as a
contribution to its common equity capital or from the issue or sale of
Qualified Equity Interests or from the issue or sale of convertible or
exchangeable Disqualified Equity Interests or convertible or exchangeable
debt securities of the Issuer that have been converted into or exchanged for
such Qualified Equity Interests (other than Equity Interests or debt
securities sold to a Subsidiary of the Issuer or net cash proceeds received
by the Issuer from Qualified Equity Offerings to the extent applied to
redeem the Notes in accordance with the provisions set forth under Section
3.7(c)), and (B) the aggregate net cash proceeds, if any, received by the
Issuer or any of its Restricted Subsidiaries upon any conversion or exchange
described in clause (A) above, plus
(C) 100.0% of the aggregate amount by which Indebtedness (other than
Indebtedness held by a Subsidiary of the Issuer) of the Issuer or any
Restricted Subsidiary is reduced on the Issuers consolidated balance sheet
upon the conversion or exchange after the Issue Date of any such
Indebtedness into or for Qualified Equity Interests, plus
(D) in the case of the disposition or repayment of or return on any
Investment that was treated as a Restricted Payment made by the Issuer after
the Issue Date, an amount (to the extent not included in the computation of
Consolidated Net Income) equal to the lesser of (i) 100.0% of the aggregate
amount received by the Issuer or any Restricted Subsidiary in cash or other
property (valued at the Fair Market Value thereof) as the return of capital
with respect to such Investment and (ii) the amount of such Investment that
was treated as a Restricted Payment, plus
(E) upon a Redesignation of an Unrestricted Subsidiary as a Restricted
Subsidiary, an amount (to the extent not included in the computation of
Consolidated Net Income) equal to the lesser of (i) the Fair Market Value of
the Issuers proportionate interest in such Subsidiary immediately following
such Redesignation, and (ii) the aggregate amount of the Issuers
Investments in such Subsidiary to the extent such Investments reduced the
Restricted Payments Basket and were not previously repaid or otherwise
reduced.
(b) Notwithstanding the foregoing, Section 4.7(a) will not prohibit:
(1) the payment of any dividend or redemption payment or the making of any
distribution within 60 days after the date of declaration thereof if, on the
46
date of declaration, the dividend, redemption or distribution payment, as the
case may be, would have complied with the provisions of this Indenture;
(2) any Restricted Payment made in exchange for, or out of the proceeds of, the
substantially concurrent issuance and sale of Qualified Equity Interests;
(3) the purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness of the Issuer or any Restricted
Subsidiary in exchange for, or out of the proceeds of, the substantially concurrent
incurrence of, Refinancing Indebtedness permitted to be incurred under Section 4.9
and the other terms of this Indenture;
(4) the purchase, repurchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness of the Issuer or any Restricted
Subsidiary (A) at a purchase price not greater than 101.0% of the principal amount
of such Subordinated Indebtedness in the event of a Change of Control in accordance
with provisions similar to Section 4.13 or (B) at a purchase price not greater than
100.0% of the principal amount thereof in accordance with provisions similar to
Section 4.10; provided that, prior to or simultaneously with such purchase,
repurchase, redemption, defeasance or other acquisition or retirement, the Issuer
has made the Change of Control Offer or Net Proceeds Offer, as applicable, as
provided in such covenant with respect to the Notes and has completed the repurchase
or redemption of all Notes validly tendered for payment in connection with such
Change of Control Offer or Net Proceeds Offer;
(5) the redemption, repurchase or other acquisition or retirement for value of
Equity Interests of the Issuer held by officers, directors or employees or former
officers, directors or employees (or their transferees, estates or beneficiaries
under their estates), either (x) upon any such individuals death, disability,
retirement, severance or termination of employment or service or (y) pursuant to any
equity subscription agreement, stock option agreement, stockholders agreement or
similar agreement; provided, in any case, that the aggregate cash consideration paid
for all such redemptions, repurchases or other acquisitions or retirements shall not
exceed (A) $10.0 million during any calendar year (with unused amounts in any
calendar year being carried forward to the next succeeding calendar year) plus (B)
the amount of any net cash proceeds received by or contributed to the Issuer from
the issuance and sale after the Issue Date of Qualified Equity Interests to its
officers, directors or employees that have not been applied to the payment of
Restricted Payments pursuant to this clause (5), plus (C) the net cash proceeds of
any key-man life insurance policies that have not been applied to the payment of
Restricted Payments pursuant to this clause (5); and provided further that
cancellation of Indebtedness owing to the Issuer from members of management of the
Issuer or any Restricted Subsidiary in connection with a repurchase of Equity
Interests of the Issuer will not be deemed to constitute a Restricted Payment for
purposes of this Section 4.7 or any other provision of this Indenture;
47
(6) (A) repurchases, redemptions or other acquisitions or retirements for value
of Equity Interests of the Issuer deemed to occur upon the exercise of stock
options, warrants, rights to acquire Equity Interests of the Issuer or other
convertible securities to the extent such Equity Interests of the Issuer represent a
portion of the exercise or exchange price thereof and (B) any repurchases,
redemptions or other acquisitions or retirements for value of Equity Interests of
the Issuer made in lieu of withholding taxes in connection with any exercise or
exchange of stock options, warrants or other similar rights;
(7) dividends or distributions on Disqualified Equity Interests of the Issuer
or any Restricted Subsidiary or on any Preferred Stock of any Restricted Subsidiary,
in each case issued in compliance with Section 4.9 to the extent such dividends are
included in the definition of Consolidated Interest Expense;
(8) the payment of cash in lieu of fractional Equity Interests of the Issuer;
(9) payments or distributions to dissenting stockholders pursuant to applicable
law in connection with a merger, consolidation or transfer of assets that complies
with Section 5.1;
(10) cash distributions by the Issuer to the holders of Equity Interests of the
Issuer in accordance with a distribution reinvestment plan or dividend reinvestment
plan to the extent such payments are applied to the purchase of Equity Interests
directly from the Issuer;
(11) Restricted Payments consisting of purchases of the Issuers Common Stock
from time to time in an aggregate amount not to exceed $100.0 million; or
(12) payment of other Restricted Payments from time to time in an aggregate
amount not to exceed $50.0 million;
provided that no issuance and sale of Qualified Equity Interests used to make a
payment pursuant to clauses (2) or (5)(B) above shall increase the Restricted
Payments Basket to the extent of such payment.
For the purposes of determining compliance with any U.S. dollar-denominated restriction
on Restricted Payments denominated in a foreign currency, the U.S. dollar-equivalent amount
of such Restricted Payment shall be calculated based on the relevant currency exchange rate
in effect on the date that such Restricted Payment was made.
The Issuer will not permit any Unrestricted Subsidiary to become a Restricted
Subsidiary except pursuant to Section 4.17. For purposes of designating any Restricted
Subsidiary as an Unrestricted Subsidiary, all outstanding Investments by the Issuer and its
Restricted Subsidiaries (except to the extent repaid) in the Subsidiary so designated will
be deemed to be Restricted Payments in an amount determined as set forth in the definition
of Investment. Such designation will be permitted only if a Restricted
48
Payment in such amount would be permitted at such time and if such Subsidiary otherwise
meets the definition of an Unrestricted Subsidiary.
SECTION 4.8. Limitation on Dividend and Other Restrictions Affecting Restricted
Subsidiaries. The Issuer shall not, and shall not permit any Restricted Subsidiary to,
directly or indirectly, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or consensual restriction on the ability of any Restricted Subsidiary to:
(a) pay dividends or make any other distributions on or in respect of its Equity
Interests to the Issuer or any of its Restricted Subsidiaries, or with respect to any other
interest or participation in, or measured by, its profits (it being understood that the
priority of any Preferred Stock in receiving dividends or liquidating distributions prior to
dividends or liquidating distributions being paid on Common Stock shall not be deemed a
restriction on the ability to make distributions on Equity Interests);
(b) make loans or advances, or pay any Indebtedness or other obligation owed, to the
Issuer or any other Restricted Subsidiary (it being understood that the subordination of
loans or advances made to the Issuer or any Restricted Subsidiary to other Indebtedness or
obligations incurred by the Issuer or any Restricted Subsidiary shall not be deemed a
restriction on the ability to make loans or advances); or
(c) transfer any of its property or assets to the Issuer or any other Restricted
Subsidiary (it being understood that such transfers shall not include any type of transfer
described in clause (a) or (b) above);
except for, in each case:
(1) encumbrances or restrictions existing under agreements existing on the
Issue Date (including, without limitation, the Credit Agreement) as in effect on
that date;
(2) encumbrances or restrictions existing under this Indenture, the Notes and
the Guarantees;
(3) any instrument governing Acquired Indebtedness or Equity Interests of a
Person acquired by the Issuer or any of its Restricted Subsidiaries, which
encumbrance or restriction is not applicable to any Person, or the properties or
assets of any Person, other than the Person or the properties or assets of the
Person so acquired;
(4) any agreement or other instrument of a Person acquired by the Issuer or any
of its Restricted Subsidiaries in existence at the time of such acquisition (but not
created in contemplation thereof), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than the
Person and its Subsidiaries, or the property or assets of the Person and its
Subsidiaries, so acquired (including after acquired property);
49
(5) any amendment, restatement, modification, renewal, supplement,
refunding, replacement or refinancing of an agreement referred to in clauses (1),
(2), (3), (4), (10) or this clause (5); provided, however, that such amendments,
restatements, modifications, renewals, supplements, refundings, replacements or
refinancings are, in the good faith judgment of the Issuer, not materially more
restrictive than the encumbrances and restrictions contained in the agreements
referred to in such clauses on the Issue Date or the date such Restricted Subsidiary
became a Restricted Subsidiary or was merged into a Restricted Subsidiary, whichever
is applicable;
(6) encumbrances or restrictions existing under or by reason of applicable law,
regulation or order;
(7) non-assignment provisions of any contract or any lease entered into in the
ordinary course of business;
(8) in the case of clause (c) above, Liens permitted to be incurred under the
provisions of Section 4.12 that limit the right of the debtor to dispose of the
assets securing such Indebtedness;
(9) restrictions imposed under any agreement to sell Equity Interests or
assets, as permitted under this Indenture, to any Person pending the closing of such
sale;
(10) any other agreement governing Indebtedness or other obligations entered
into after the Issue Date if either (A) such agreement contains encumbrances and
restrictions that in the good faith judgment of the Issuer are not materially more
restrictive with respect to any Restricted Subsidiary than those in effect on the
Issue Date with respect to that Restricted Subsidiary pursuant to agreements in
effect on the Issue Date or (B) any such encumbrance or restriction contained in
such Indebtedness is customary and does not prohibit (except upon a default or an
event of default thereunder) the payment of dividends in an amount sufficient, as
determined by the Issuer in good faith, to make scheduled payments of cash interest
and principal on the Notes when due;
(11) customary provisions in partnership agreements, limited liability company
organizational governance documents, joint venture agreements, shareholder
agreements and other similar agreements entered into in the ordinary course of
business that restrict the disposition or distribution of ownership interests in or
assets of such partnership, limited liability company, joint venture, corporation or
similar Person;
(12) Purchase Money Indebtedness and any Refinancing Indebtedness in respect
thereof incurred in compliance with Section 4.9 that imposes restrictions of the
nature described in Section 4.8(c) on the assets acquired; and
50
(13) restrictions on cash or other deposits or net worth imposed by customers,
suppliers or landlords under contracts entered into in the ordinary course of
business.
SECTION 4.9. Limitation on Additional Indebtedness.
(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, incur any Indebtedness (including Acquired Indebtedness); provided that the
Issuer or any Restricted Subsidiary may incur additional Indebtedness (including Acquired
Indebtedness), in each case, if, after giving effect thereto on a pro forma basis (including
giving pro forma effect to the application of the proceeds thereof), the Issuers
Consolidated Interest Coverage Ratio would be at least 2.00 to 1.00 (the Coverage Ratio
Exception).
(b) Notwithstanding the above, each of the following incurrences of Indebtedness shall
be permitted (the Permitted Indebtedness):
(1) Indebtedness under one or more Credit Facilities in an aggregate principal
amount at any time outstanding, including the issuance and creation of letters of
credit and bankers acceptances thereunder (with letters of credit and bankers
acceptances being deemed to have a principal amount equal to the face amount
thereof) not to exceed the greater of (A) $1.2 billion or (B) the sum of $600.0
million plus 25.0% of the Issuers Consolidated Tangible Assets determined at the
time of incurrence;
(2) Indebtedness under (A) the Initial Notes issued on the Issue Date, (B) the
Exchange Notes issued in exchange therefor pursuant to the Registration Rights
Agreement, and (C) the Guarantees of the Notes;
(3) Indebtedness of the Issuer and its Restricted Subsidiaries to the extent
outstanding on the Issue Date after giving effect to the use of proceeds of the
Notes (other than Indebtedness referred to in clauses (1), (2), (4), (6), (7), (9),
(10) and (12));
(4) guarantees by (A) the Issuer or Guarantors of Indebtedness permitted to be
incurred in accordance with the provisions of this Indenture; provided that in the
event such Indebtedness that is being guaranteed is Subordinated Indebtedness, then
the related Guarantee shall be subordinated in right of payment to the Notes or the
Guarantee, as the case may be, and (B) Guarantees of Indebtedness incurred by
Restricted Subsidiaries that are not Guarantors in accordance with the provisions of
this Indenture;
(5) Indebtedness under Hedging Obligations entered into for bona fide hedging
purposes of the Issuer or any Restricted Subsidiary in the ordinary course of
business and not for the purpose of speculation; provided that in the case of
Hedging Obligations relating to interest rates, (A) such Hedging Obligations relate
to payment obligations on Indebtedness otherwise permitted to be incurred by this
Section 4.9, and (B) the notional principal amount of such Hedging
51
Obligations at the time incurred does not exceed the principal amount of the
Indebtedness to which such Hedging Obligations relate;
(6) Indebtedness of the Issuer owed to and held by a Restricted Subsidiary and
Indebtedness of any Restricted Subsidiary owed to and held by the Issuer or any
other Restricted Subsidiary; provided, however, that
(A) if the Issuer is the obligor on Indebtedness and a Restricted
Subsidiary that is not a Guarantor is the obligee, such Indebtedness is
expressly subordinated to the prior payment in full in cash of all
obligations with respect to the Notes;
(B) if a Guarantor is the obligor on such Indebtedness and a Restricted
Subsidiary that is not a Guarantor is the obligee, such Indebtedness is
subordinated in right of payment to the Guarantee of such Guarantor; and
(C)
(i) any subsequent issuance or transfer of Equity Interests or
any other event which results in any such Indebtedness being held by
a Person other than the Issuer or any other Restricted Subsidiary;
and
(ii) any sale or other transfer of any such Indebtedness to a
Person other than the Issuer or any other Restricted Subsidiary shall
be deemed, in each case of this clause (C), to constitute an
incurrence of such Indebtedness not permitted by this clause (6);
(7) Indebtedness in respect of workers compensation claims, bank guarantees,
warehouse receipt or similar facilities, property, casualty or liability insurance,
take-or-pay obligations in supply arrangements, self-insurance obligations or
completion, performance, bid performance, appeal or surety bonds in the ordinary
course of business, including guarantees or obligations with respect to letters of
credit supporting such workers compensation claims, bank guarantees, warehouse
receipt or similar facilities, property, casualty or liability insurance,
take-or-pay obligations in supply arrangements, self-insurance obligations or
completion, performance, bid performance, appeal or surety bonds;
(8) Purchase Money Indebtedness incurred by the Issuer or any Restricted
Subsidiary after the Issue Date, and Refinancing Indebtedness thereof, in an
aggregate principal amount not to exceed at any time outstanding the greater of (A)
$75.0 million or (B) 3.0% of the Issuers Consolidated Tangible Assets determined at
the time of incurrence;
(9) Indebtedness arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently (except in the
case
52
of daylight overdrafts) drawn against insufficient funds in the ordinary course
of business;
(10) Indebtedness arising in connection with endorsement of instruments for
deposit in the ordinary course of business;
(11) Refinancing Indebtedness with respect to Indebtedness incurred pursuant to
the Coverage Ratio Exception or with respect to Indebtedness incurred pursuant to
clause (2), (3) or (8) above, this clause (11), or clause (15) below;
(12) indemnification, adjustment of purchase price, earn-out or similar
obligations, in each case, incurred or assumed in connection with the acquisition or
disposition of any business or assets of the Issuer or any Restricted Subsidiary or
Equity Interests of a Restricted Subsidiary, other than guarantees of Indebtedness
incurred by any Person acquiring all or any portion of such business, assets or
Equity Interests for the purpose of financing or in contemplation of any such
acquisition; provided that (A) any amount of such obligations included on the face
of the balance sheet of the Issuer or any Restricted Subsidiary shall not be
permitted under this clause (12) (contingent obligations referred to on the face of
a balance sheet or in a footnote thereto and not otherwise quantified and reflected
on the balance sheet will not be deemed included on the face of the balance sheet
for purposes of the foregoing) and (B) in the case of a disposition, the maximum
aggregate liability in respect of all such obligations outstanding under this clause
(12) shall at no time exceed the gross proceeds actually received by the Issuer and
the Restricted Subsidiaries in connection with such disposition;
(13) additional Indebtedness of the Issuer or any Restricted Subsidiary in an
aggregate principal amount which, when taken together with the principal amount of
all other Indebtedness incurred pursuant to this clause (13) and then outstanding,
will not exceed the greater of (A) $150.0 million or (B) 7.0% of the Issuers
Consolidated Tangible Assets determined at the time of incurrence;
(14) Indebtedness in respect of Specified Cash Management Agreements entered
into in the ordinary course of business;
(15) Indebtedness of Persons incurred and outstanding on the date on which such
Person was acquired by the Issuer or any Restricted Subsidiary, or merged or
consolidated with or into the Issuer or any Restricted Subsidiary (other than
Indebtedness incurred in connection with, or in contemplation of, such acquisition,
merger or consolidation); provided, however, that at the time such Person or assets
is/are acquired by the Issuer or a Restricted Subsidiary, or merged or consolidated
with the Issuer or any Restricted Subsidiary and after giving pro forma effect to
the incurrence of such Indebtedness pursuant to this clause (15) and any other
related Indebtedness, either (A) the Issuer would have been able to incur $1.00 of
additional Indebtedness pursuant to the Coverage Ratio Exception; or (B) the
Consolidated Interest Coverage Ratio of the Issuer
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and its Restricted Subsidiaries would be greater than or equal to such
Consolidated Interest Coverage Ratio immediately prior to such acquisition, merger
or consolidation; and
(16) Indebtedness representing deferred compensation to directors, officers,
members of management or employees (in their capacities as such) of the Issuer or
any Restricted Subsidiary and incurred in the ordinary course of business.
For purposes of determining compliance with this Section 4.9, in the event that an item of
Indebtedness meets the criteria of more than one of the categories of Permitted Indebtedness
described in clauses (1) through (16) above or is entitled to be incurred pursuant to the Coverage
Ratio Exception, the Issuer shall, in its sole discretion, classify such item of Indebtedness and
may divide and classify such Indebtedness in more than one of the types of Indebtedness described,
except that Indebtedness incurred under the Credit Agreement on the Issue Date after giving effect
to the application of the proceeds of the offering of the Initial Notes shall be deemed to have
been incurred under clause (1) above, and may later reclassify any item of Indebtedness described
in clauses (1) through (16) above (provided that at the time of reclassification it meets the
criteria in such category or categories). In addition, for purposes of determining any particular
amount of Indebtedness under this Section 4.9, (i) guarantees, Liens or letter of credit
obligations supporting Indebtedness otherwise included in the determination of such particular
amount shall not be included so long as incurred by a Person that could have incurred such
Indebtedness; and (ii) the amount of Indebtedness issued at a price that is less than the principal
amount thereof will be equal to the amount of the liability in respect thereof determined in
accordance with GAAP.
For the purposes of determining compliance with any U.S. dollar-denominated restriction on the
incurrence of Indebtedness denominated in a foreign currency, the U.S. dollar-equivalent principal
amount of such Indebtedness incurred pursuant thereto shall be calculated based on the relevant
currency exchange rate in effect on the earlier of the date that such Indebtedness was incurred, in
the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness;
provided that if such Indebtedness is incurred to refinance other Indebtedness denominated in a
foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated
restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the
date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been
exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the
principal amount of such Indebtedness being refinanced. The principal amount of any Indebtedness
incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness
being refinanced, shall be calculated based on the currency exchange rate applicable to the
currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of
such refinancing.
If at any time an Unrestricted Subsidiary becomes a Restricted Subsidiary, any Indebtedness of
such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary as of such date (and, if
such Indebtedness is not permitted to be incurred as of such date under this Section 4.9, the
Issuer shall be in Default of this Section 4.9).
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SECTION 4.10. Limitation on Asset Sales.
(a) The Issuer shall not, and shall not permit any Restricted Subsidiary to, directly
or indirectly, consummate any Asset Sale unless:
(1) the Issuer or such Restricted Subsidiary, as the case may be, receives
consideration at least equal to the Fair Market Value (such Fair Market Value to be
determined on the date of contractually agreeing to such Asset Sale) of the shares
and assets subject to such Asset Sale; and
(2) at least 75.0% of the total consideration from such Asset Sale and all
other Asset Sales on a cumulative basis since the Issue Date received by the Issuer
or such Restricted Subsidiary, as the case may be, is in the form of cash or Cash
Equivalents.
For purposes of clause (2) above and for no other purpose, the following shall be
deemed to be cash:
(A) the amount (without duplication) of any Indebtedness (other than
Subordinated Indebtedness or intercompany Indebtedness) of the Issuer or
such Restricted Subsidiary that is expressly assumed by the transferee of
any such assets pursuant to a written agreement that releases the Issuer or
such Restricted Subsidiary from further liability therefor,
(B) the amount of any securities, notes or other obligations received
from such transferee that are within 180 days after such Asset Sale
converted by the Issuer or such Restricted Subsidiary into cash (to the
extent of the cash actually so received),
(C) any Designated Non-cash Consideration received by the Issuer or any
of its Restricted Subsidiaries in such Asset Sale having an aggregate Fair
Market Value, taken together with all other Designated Non-cash
Consideration received pursuant to this Section 4.10(a)(2)(C) that is at
that time outstanding, not to exceed the greater of (i) $75.0 million or
(ii) 2.5% of the Issuers Consolidated Tangible Assets at the time of
receipt of such Designated Non-cash Consideration, with the Fair Market
Value of each item of Designated Non-cash Consideration being measured at
the time received and without giving effect to subsequent changes in value,
and
(D) the Fair Market Value of (i) any assets (other than securities)
received by the Issuer or any Restricted Subsidiary to be used by it in a
Permitted Business, (ii) Equity Interests in a Person that is a Restricted
Subsidiary or in a Person engaged in a Permitted Business that shall become
a Restricted Subsidiary immediately upon the acquisition of such Person by
the Issuer or (iii) a combination of (i) and (ii).
55
If at any time any non-cash consideration received by the Issuer or any Restricted
Subsidiary, as the case may be, in connection with any Asset Sale is repaid or converted
into or sold or otherwise disposed of for cash (other than interest received with respect to
any such non-cash consideration), then the date of such repayment, conversion or disposition
shall be deemed to constitute the date of an Asset Sale hereunder and the Net Available
Proceeds thereof shall be applied in accordance with this Section 4.10.
Any Asset Sale pursuant to a condemnation, appropriation or other similar taking,
including by deed in lieu of condemnation, or pursuant to the foreclosure or other
enforcement of a Permitted Lien or exercise by the related lienholder of rights with respect
thereto, including by deed or assignment in lieu of foreclosure shall not be required to
satisfy the conditions set forth in clauses (1) and (2) of Section 4.10(a).
Notwithstanding the foregoing, the 75.0% limitation referred to above shall be deemed
satisfied with respect to any Asset Sale in which the cash or Cash Equivalents portion of
the consideration received therefrom, determined in accordance with the foregoing provision
on an after-tax basis, is equal to or greater than what the after-tax proceeds would have
been had such Asset Sale complied with the aforementioned 75.0% limitation.
(b) If the Issuer or any Restricted Subsidiary engages in an Asset Sale, the Issuer or
such Restricted Subsidiary may, no later than 365 days following the consummation thereof,
apply all or any of the Net Available Proceeds therefrom to:
(1)
repay, redeem or otherwise retire any Indebtedness of the Issuer or a Restricted Subsidiary (other than any Disqualified Equity Interests or Subordinated
Indebtedness of the Issuer or a Guarantor, and other than Indebtedness owed to the
Issuer or an Affiliate of the Issuer);
(2) (A) make any capital expenditure or otherwise invest all or any part of the
Net Available Proceeds thereof in the purchase of assets (other than securities and
excluding working capital or current assets for the avoidance of doubt) to be used
by the Issuer or any Restricted Subsidiary in a Permitted Business, (B) acquire
Qualified Equity Interests held by a Person other than the Issuer or any of its
Restricted Subsidiaries in a Person that is a Restricted Subsidiary or in a Person
engaged in a Permitted Business that shall become a Restricted Subsidiary
immediately upon the consummation of such acquisition or (C) a combination of (A)
and (B).
The amount of Net Available Proceeds not applied or invested as provided in clauses (1) or (2)
of this Section 4.10(b) shall constitute Excess Proceeds.
(c) On the 366th day after an Asset Sale (or, at the Issuers option, an earlier date),
if the aggregate amount of Excess Proceeds equals or exceeds $50.0 million, the Issuer shall
be required to make an offer to purchase or redeem (a Net Proceeds Offer) from all Holders
and, to the extent required by the terms of other Pari Passu Indebtedness of the Issuer, to
all holders of other Pari Passu Indebtedness outstanding with similar
56
provisions requiring the Issuer to make an offer to purchase or redeem such Pari Passu
Indebtedness with the proceeds from any Asset Sale, to purchase or redeem the maximum
principal amount of Notes and any such Pari Passu Indebtedness to which the Net Proceeds
Offer applies that may be purchased or redeemed out of the Excess Proceeds, at an offer
price in cash in an amount equal to 100.0% of the principal amount of Notes and Pari Passu
Indebtedness plus accrued and unpaid interest thereon, if any, to the date of purchase, in
accordance with the procedures set forth in this Indenture or the agreements governing the
Pari Passu Indebtedness, as applicable, in each case in denominations of $2,000 or integral
multiples of $1,000 in excess thereof.
To the extent that the sum of the aggregate principal amount of Notes and Pari Passu
Indebtedness so validly tendered pursuant to a Net Proceeds Offer is less than the Excess
Proceeds, the Issuer may use any remaining Excess Proceeds, or a portion thereof, for any
purposes not otherwise prohibited by the provisions of this Indenture. If the aggregate
principal amount of Notes and Pari Passu Indebtedness so validly tendered pursuant to a Net
Proceeds Offer exceeds the amount of Excess Proceeds, the Issuer shall select the Notes and
Pari Passu Indebtedness to be purchased on a pro rata basis on the basis of the aggregate
outstanding principal amount of Notes and Pari Passu Indebtedness. Upon completion of such
Net Proceeds Offer in accordance with the foregoing provisions, the amount of Excess
Proceeds with respect to which such Net Proceeds Offer was made shall be deemed to be zero.
(d) The Net Proceeds Offer will remain open for a period of 20 Business Days following
its commencement, except to the extent that a longer period is required by applicable law
(the Net Proceeds Offer Period). No later than five (5) Business Days after the
termination of the Net Proceeds Offer Period (the Net Proceeds Purchase Date), the Issuer
will purchase the principal amount of Notes and Pari Passu Indebtedness required to be
purchased pursuant to this Section 4.10 (the Net Proceeds Offer Amount) or, if less than
the Net Proceeds Offer Amount has been so validly tendered, all Notes and Pari Passu
Indebtedness validly tendered in response to the Net Proceeds Offer.
If the Net Proceeds Purchase Date is on or after an interest record date and on or
before the related interest payment date, any accrued and unpaid interest will be paid to
the Person in whose name a Note is registered at the close of business on such record date,
and no additional interest will be payable to Holders who tender Notes pursuant to the Net
Proceeds Offer.
Pending the final application of any Net Available Proceeds pursuant to this Section
4.10, the holder of such Net Available Proceeds may apply such Net Available Proceeds
temporarily to reduce Indebtedness outstanding under a revolving Credit Facility or
otherwise invest such Net Available Proceeds in any manner not prohibited by this Indenture.
On or before the Net Proceeds Purchase Date, the Issuer will, to the extent lawful,
accept for payment, on a pro rata basis to the extent necessary, the Net Proceeds Offer
Amount of Notes and Pari Passu Indebtedness or portions of Notes and Pari Passu
57
Indebtedness so validly tendered and not properly withdrawn pursuant to the Net
Proceeds Offer, or if less than the Net Proceeds Offer Amount has been validly tendered and
not properly withdrawn, all Notes and Pari Passu Indebtedness so validly tendered and not
properly withdrawn, in each case in denominations of $2,000 and integral multiples of $1,000
in excess thereof. The Issuer or the Paying Agent, as the case may be, will promptly (but in
any case not later than five (5) Business Days after termination of the Net Proceeds Offer
Period) mail or deliver to each tendering Holder and the Issuer will mail or deliver to each
tendering holder or lender of Pari Passu Indebtedness, as the case may be, an amount equal
to the purchase price of the Notes or Pari Passu Indebtedness so validly tendered and not
properly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer
for purchase, and the Issuer will promptly issue a new Note, and the Trustee, upon delivery
of an Officers Certificate from the Issuer, will authenticate and mail or deliver such new
Note to such Holder, in a principal amount equal to any unpurchased portion of the Note
surrendered; provided that each such new Note will be in a principal amount of $2,000 or an
integral multiple of $1,000 in excess thereof. In addition, the Issuer will take any and all
other actions required by the agreements governing the Pari Passu Indebtedness. Any Note not
so accepted will be promptly mailed or delivered by the Issuer to the Holder thereof. The
Issuer will publicly announce the results of the Net Proceeds Offer on the Net Proceeds
Purchase Date.
Notwithstanding the foregoing, the sale, conveyance or other disposition of all or
substantially all of the assets of the Issuer and its Restricted Subsidiaries, taken as a
whole, will be governed by Section 4.13 and/or Section 5.1 and not by this Section 4.10.
The Issuer shall comply with all applicable securities laws and regulations in the
United States, including, without limitation, the requirements of Rule 14e-1 under the
Exchange Act and any other applicable laws and regulations in connection with the purchase
of Notes pursuant to a Net Proceeds Offer. To the extent that the provisions of any
applicable securities laws or regulations conflict with this Section 4.10, the Issuer shall
comply with the applicable securities laws and regulations and will not be deemed to have
breached its obligations under this Section 4.10 by virtue of such compliance.
SECTION 4.11. Limitation on Transactions with Affiliates.
(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, in one transaction or a series of related transactions, sell, lease,
transfer or otherwise dispose of any of its assets to, or purchase any assets from, or enter
into any contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (an Affiliate Transaction), unless:
(1) the terms of such Affiliate Transaction are not materially less favorable
to the Issuer or such Restricted Subsidiary, as the case may be, than those that
could reasonably be expected to have been obtained in a comparable transaction at
the time of such transaction in arms length dealings with a Person who is not such
an Affiliate or are otherwise fair to the Issuer or such Restricted Subsidiary from
a financial point of view; and
58
(2) the Issuer delivers to the Trustee, with respect to any Affiliate
Transaction involving aggregate value in excess of $25.0 million, an Officers
Certificate certifying that such Affiliate Transaction complies with clause (1)
above and a Secretarys Certificate which sets forth and authenticates a resolution
that has been adopted by the Independent Directors approving such Affiliate
Transaction.
(b) The foregoing restrictions shall not apply to:
(1) transactions to the extent between or among (a) the Issuer and one or more
Restricted Subsidiaries or (b) Restricted Subsidiaries;
(2) reasonable director, trustee, officer and employee compensation (including
bonuses) and other benefits (including pursuant to any employment agreement or any
retirement, health, stock option or other benefit plan), payments or loans (or
cancellation of loans) to employees of the Issuer and indemnification arrangements,
in each case, as determined in good faith by the Issuers Board of Directors or
senior management;
(3) the entering into of a tax sharing agreement, or payments pursuant thereto,
between the Issuer and/or one or more Subsidiaries, on the one hand, and any other
Person with which the Issuer or such Subsidiaries are required or permitted to file
a consolidated tax return or with which the Issuer or such Subsidiaries are part of
a consolidated group for tax purposes to be used by such Person to pay taxes, and
which payments by the Issuer and the Restricted Subsidiaries are not in excess of
the tax liabilities that would have been payable by them on a stand-alone basis or
payable based on the allocation of tax liabilities under applicable tax laws;
(4) any Permitted Investments (other than pursuant to clause (1) of the
definition thereof);
(5) any Restricted Payments which are made in accordance with Section 4.7;
(6) any agreement in effect on the Issue Date or as thereafter amended or
replaced in any manner that, taken as a whole, is not more disadvantageous to the
Holders or the Issuer in any material respect than such agreement as it was in
effect on the Issue Date;
(7) any transaction with a Person (other than an Unrestricted Subsidiary of the
Issuer) which would constitute an Affiliate of the Issuer solely because the Issuer
or a Restricted Subsidiary owns an equity interest in or otherwise controls such
Person;
(8) transactions with customers, clients, suppliers, or purchasers or sellers
of goods or services, in each case in the ordinary course of business and otherwise
in compliance with the terms of this Indenture; provided that in the
59
reasonable determination of the Board of Directors of the Issuer or the senior
management of the Issuer, such transactions are on terms not materially less
favorable to the Issuer or the relevant Restricted Subsidiary than those that could
reasonably be expected to be obtained in a comparable transaction at such time on an
arms-length basis from a Person that is not an Affiliate of the Issuer; and
(9) (a) any transaction with an Affiliate where the only consideration paid by
the Issuer or any Restricted Subsidiary is Qualified Equity Interests or (b) the
issuance or sale of any Qualified Equity Interests and the granting of registration
and other customary rights in connection therewith.
SECTION 4.12. Limitation on Liens. The Issuer shall not, and shall not permit any
Restricted Subsidiary to, directly or indirectly, create, incur, assume or permit or suffer to
exist any Lien (other than Permitted Liens) upon any of their property or assets (including Equity
Interests of any Restricted Subsidiary), whether owned at the Issue Date or thereafter acquired,
which Lien secures Indebtedness, unless contemporaneously with the incurrence of such Lien:
(1) in the case of any Lien securing Indebtedness that ranks pari passu with the Notes
or a Guarantee, effective provision is made to secure the Notes or such Guarantee, as the
case may be, at least equally and ratably with or prior to such Indebtedness with a Lien on
the same collateral; and
(2) in the case of any Lien securing Indebtedness that is subordinated in right of
payment to the Notes or a Guarantee, effective provision is made to secure the Notes or such
Guarantee, as the case may be, with a Lien on the same collateral that is senior to the Lien
securing such subordinated Indebtedness,
in each case, for so long as such Indebtedness is secured by such Lien.
SECTION 4.13. Offer to Purchase upon Change of Control. Upon the occurrence of any
Change of Control, unless the Issuer has previously or concurrently exercised its right to redeem
all of the Notes as described under Section 3.7, each Holder will have the right to require that
the Issuer purchase all or any portion (equal to $2,000 or an integral multiple of $1,000 in excess
thereof) of that Holders Notes for a cash price (the Change of Control Purchase Price) equal to
101.0% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest and
Additional Interest, if any, thereon to the date of purchase.
Not later than 30 days following any Change of Control, the Issuer will deliver, or cause to
be delivered, to the Holders, with a copy to the Trustee, a notice:
(1) describing the transaction or transactions that constitute the Change of Control;
(2) offering to purchase, pursuant to the procedures required by this Indenture and
described in the notice (a Change of Control Offer), on a date specified in the notice,
which shall be a Business Day not earlier than 30 days, nor later than 60 days, from the
date the notice is delivered (the Change of Control Payment Date), and for the Change of
Control Purchase Price, all Notes properly tendered by such Holder pursuant to
60
such Change of Control Offer prior to 5:00 p.m. New York time on the second Business
Day preceding the Change of Control Payment Date; and
(3) describing the procedures, as determined by the Issuer, consistent with this
Indenture, that Holders must follow to accept the Change of Control Offer.
On or before the Change of Control Payment Date, the Issuer will, to the extent lawful,
deposit with the Paying Agent an amount equal to the Change of Control Purchase Price in respect of
the Notes or portions of Notes properly tendered.
On the Change of Control Payment Date, the Issuer will, to the extent lawful:
(1) accept for payment all Notes or portions of Notes (of $2,000 or integral multiples
of $1,000 in excess thereof) properly tendered pursuant to the Change of Control Offer; and
(2) deliver or cause to be delivered to the Trustee the Notes so accepted together with
an Officers Certificate stating the aggregate principal amount of Notes or portions of
Notes being purchased by the Issuer.
The Paying Agent will promptly deliver to each Holder who has so tendered Notes the Change of
Control Purchase Price for such Notes, and the Trustee will promptly authenticate and mail (or
cause to be transferred by book-entry) to each Holder a new Note equal in principal amount to any
unpurchased portion of the Notes so tendered, if any; provided that each such new Note will be in a
principal amount of $2,000 or integral multiples of $1,000 in excess thereof.
If the Change of Control Payment Date is on or after an interest record date and on or before
the related interest payment date, any accrued and unpaid interest, if any, will be paid on the
relevant interest payment date to the Person in whose name a Note is registered at the close of
business on such record date.
A Change of Control Offer shall remain open for at least 20 Business Days or for such longer
period as is required by law. The Issuer shall publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Payment Date.
The Issuers obligation to make a Change of Control Offer shall be satisfied if a third party
makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the
requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer
and purchases all Notes properly tendered and not withdrawn under such Change of Control Offer.
If Holders of not less than 90.0% in aggregate principal amount of the outstanding Notes
validly tender and do not withdraw such Notes in a Change of Control Offer and the Issuer, or any
third party making a Change of Control Offer in lieu of the Issuer as described above, purchases
all of the Notes validly tendered and not withdrawn by such Holders, the Issuer will have the
right, upon not less than 30 nor more than 60 days prior notice, given not more than 30 days
following such purchase pursuant to the Change of Control Offer described above, to redeem all
Notes that remain outstanding following such purchase at a redemption price in cash
61
equal to the applicable Change of Control Purchase Price plus, to the extent not
included in the Change of Control Purchase Price, accrued and unpaid interest, if any, to the date
of redemption.
The Issuer shall comply with all applicable securities legislation in the United States,
including, without limitation, the requirements of Rule 14e-l under the Exchange Act and any other
applicable laws and regulations in connection with the purchase of Notes pursuant to a Change of
Control Offer. To the extent that the provisions of any applicable securities laws or regulations
conflict with this Section 4.13, the Issuer shall comply with the applicable securities laws and
regulations and shall not be deemed to have breached its obligations under this Section 4.13 by
virtue of such compliance.
The provisions under this Indenture relating to the Issuers obligation to make a Change of
Control Offer may be waived, modified or terminated with the written consent of the Holders of a
majority in principal amount of the Notes then outstanding.
Notwithstanding anything to the contrary contained herein, a Change of Control Offer may be
made in advance of a Change of Control, conditional upon such Change of Control, if a definitive
agreement is in place for the Change of Control at the time of making of the Change of Control
Offer.
SECTION 4.14. Corporate Existence. Subject to Article V, the Issuer shall do or
cause to be done all things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership, limited liability company or other existence of each of
its Subsidiaries in accordance with the respective organizational documents (as the same may be
amended from time to time) of the Issuer or any such Subsidiary and the rights (charter and
statutory), licenses and franchises of the Issuer and its Subsidiaries; provided that the Issuer
shall not be required to preserve any such right, license or franchise, or the corporate,
partnership or other existence of any of its Subsidiaries, if the Issuer shall determine that the
preservation thereof is no longer desirable in the conduct of the business of the Issuer and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to
the Holders.
SECTION 4.15. Conduct of Business. The Issuer shall engage, and shall cause its
Restricted Subsidiaries to engage, only in businesses that, when considered together as a single
enterprise, are primarily the Permitted Business.
SECTION 4.16. Additional Guarantees. If any Restricted Subsidiary of the Issuer,
other than a Guarantor, shall guarantee any Indebtedness of the Issuer or any Guarantor under a
Credit Facility, then the Issuer shall, within 30 days thereof, cause such Restricted Subsidiary to
execute and deliver to the Trustee a supplemental indenture in substantially the form attached
hereto as Exhibit B, pursuant to which such Restricted Subsidiary shall become a Guarantor
with respect to the Notes, upon the terms and subject to the release provisions and other
limitations set forth in Article X.
SECTION 4.17. Limitation on Designation of Unrestricted Subsidiaries. The Board of
Directors of the Issuer may designate any Subsidiary (including any newly formed or newly acquired
Subsidiary or a Person becoming a Subsidiary through merger or consolidation or
62
Investment therein) of the Issuer as an Unrestricted Subsidiary under this Indenture (a
Designation) only if:
(1) no Default shall have occurred and be continuing at the time of or after giving
effect to such Designation; and
(2) the Issuer would be permitted to make, at the time of such Designation, (a) a
Permitted Investment or (b) an Investment pursuant to Section 4.7, in either case, in an
amount (the Designation Amount) equal to the Fair Market Value of the Issuers
proportionate interest in such Subsidiary on such date.
No Subsidiary shall be Designated as an Unrestricted Subsidiary unless:
(A) all of the Indebtedness of such Subsidiary and its Subsidiaries shall, at the date
of Designation, consist of Non-Recourse Debt, except for any guarantee given solely to
support the pledge by the Issuer or any Restricted Subsidiary of the Equity Interests of
such Unrestricted Subsidiary, which guarantee is not recourse to the Issuer or any
Restricted Subsidiary, and except for any guarantee of Indebtedness of such Subsidiary by
the Issuer or a Restricted Subsidiary that is permitted as both an incurrence of
Indebtedness and an Investment (in each case in amount equal to the amount of such
Indebtedness so guaranteed) permitted under Section 4.7 and Section 4.9;
(B) on the date such Subsidiary is Designated an Unrestricted Subsidiary, such
Subsidiary is not party to any agreement, contract, arrangement or understanding (other than
a guarantee permitted under clause (A) above) with the Issuer or any Restricted Subsidiary
unless the terms of the agreement, contract, arrangement or understanding are not materially
less favorable to the Issuer or the Restricted Subsidiary than those that could reasonably
be expected to have been obtained at the time from Persons who are not Affiliates of the
Issuer; and
(C) such Subsidiary is a Person with respect to which neither the Issuer nor any of its
Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for
additional Equity Interests of such Person or (b) to maintain or preserve the Persons
financial condition or to cause the Person to achieve any specified levels of operating
results (in each case other than a guarantee permitted under clause (A) above).
Any such Designation by the Board of Directors of the Issuer shall be evidenced to the Trustee
by filing with the Trustee a resolution of the Board of Directors of the Issuer giving effect to
such Designation and an Officers Certificate certifying that such Designation complies with the
foregoing conditions. If, at any time, any Unrestricted Subsidiary fails to meet the preceding
requirements as an Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of the Subsidiary and any Liens on
assets of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary at such time
and, if the Indebtedness is not permitted to be incurred under Section 4.9 or the Lien is not
permitted under Section 4.12, the Issuer shall be in default of the applicable covenant.
63
The Board of Directors of the Issuer may redesignate an Unrestricted Subsidiary as a
Restricted Subsidiary (a Redesignation) only if:
(1) no Default shall have occurred and be continuing at the time of and after giving
effect to such Redesignation; and
(2) all Liens, Indebtedness and Investments of such Unrestricted Subsidiary outstanding
immediately following such Redesignation would, if incurred or made at such time, have been
permitted to be incurred or made for all purposes of this Indenture.
Any such Redesignation shall be evidenced to the Trustee by filing with the Trustee a
resolution of the Board of Directors of the Issuer giving effect to such designation and an
Officers Certificate certifying that such Redesignation complies with the foregoing conditions.
SECTION 4.18. Covenant Termination.
(a) Following the first date that the Notes have a Moodys rating of Baa3 or higher or
an S&P rating of BBB- or higher (each, an Investment Grade Rating) and no Default or Event
of Default has occurred and is then continuing, then upon delivery by the Issuer to the
Trustee of an Officers Certificate to the foregoing effect, the Issuer and the Restricted
Subsidiaries will no longer be subject to the following covenants:
(1) | Section 4.7; | ||
(2) | Section 4.8; | ||
(3) | Section 4.9; | ||
(4) | Section 4.10; | ||
(5) | Section 4.11; | ||
(6) | Section 4.15; and | ||
(7) | Section 5.1(a)(3). |
After the foregoing covenants have been terminated, the Issuer may not Designate any of
its Subsidiaries as Unrestricted Subsidiaries pursuant to Section 4.17.
(b) Neither the Trustee nor any Agent shall have any liability or responsibility with
respect to, or obligation or duty to monitor, determine or inquire as to (i) the Issuer or
any Guarantors compliance with any covenant under this Indenture (other than the covenant
to make payment on the Notes) or (ii) as to whether or not Moodys or S&P has adjusted the
rating of the Notes.
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ARTICLE V
SUCCESSORS
SUCCESSORS
SECTION 5.1. Consolidation, Merger, Conveyance, Transfer or Lease.
(a) The Issuer will not, directly or indirectly, in a single transaction or a series of
related transactions, consolidate or merge with or into another Person (whether or not the
Issuer is the surviving Person), or sell, lease, transfer, convey or otherwise dispose of or
assign all or substantially all of the assets of the Issuer and its Restricted Subsidiaries
(taken as a whole) to any Person unless:
(1) either:
(A) the Issuer will be the surviving or continuing Person; or
(B) the Person (if other than the Issuer) formed by or surviving or
continuing from such consolidation or merger or to which such sale, lease,
transfer, conveyance or other disposition or assignment shall be made
(collectively, the Successor) is a corporation, limited liability company
or limited partnership organized and existing under the laws of the United
States or of any State of the United States or the District of Columbia, and
the Successor expressly assumes, by agreements in form and substance
reasonably satisfactory to the Trustee, all of the obligations of the Issuer
under the Notes and this Indenture; provided, that if the Successor is not a
corporation, a Restricted Subsidiary that is a corporation expressly assumes
as co-obligor all of the obligations of the Issuer under this Indenture and
the Notes pursuant to a supplemental indenture to this Indenture executed
and delivered to the Trustee;
(2) immediately after giving effect to such transaction and the assumption of
the obligations as set forth in clause (1)(B) above and the incurrence of any
Indebtedness to be incurred in connection therewith, and the use of any net proceeds
therefrom on a pro forma basis, no Default shall have occurred and be continuing;
(3) immediately after giving pro forma effect to such transaction and the
assumption of the obligations as set forth in clause (1)(B) above and the incurrence
of any Indebtedness to be incurred in connection therewith, and the use of any net
proceeds therefrom on a pro forma basis, (i) the Issuer or its Successor, as the
case may be, could incur $1.00 of additional Indebtedness pursuant to the Coverage
Ratio Exception or (ii) the Consolidated Interest Coverage Ratio for the Issuer or
its Successor, as the case may be, and its Restricted Subsidiaries would be greater
than or equal to such Consolidated Interest Coverage Ratio prior to such
transaction; and
(4) the Issuer shall have delivered to the Trustee an Officers Certificate and
an Opinion of Counsel to the effect that such merger,
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consolidation or transfer and such agreement and/or supplemental indenture (if
any) comply with this Indenture.
For purposes of this Section 5.1, any Indebtedness of the Successor which was not
Indebtedness of the Issuer immediately prior to the transaction shall be deemed to have been
incurred in connection with such transaction.
(b) Except in circumstances under which this Indenture provides for the release of the
Guarantee of a Guarantor as described under Section 10.5, no Guarantor will, and the Issuer
will not permit any Guarantor to, directly or indirectly, in a single transaction or a
series of related transactions, consolidate or merge with or into another Person (whether or
not the Guarantor is the surviving Person) unless either:
(1)
(A) (i) such Guarantor will be the surviving or continuing Person; or
(ii) the Person (if other than such Guarantor) formed by or surviving any
such consolidation or merger is the Issuer or another Guarantor or assumes,
by agreements in form and substance reasonably satisfactory to the Trustee,
all of the obligations of such Guarantor under the Guarantee of such
Guarantor and this Indenture;
(B) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
(C) the Issuer shall have delivered to the Trustee an Officers
Certificate and an Opinion of Counsel, each stating that such merger or
consolidation and such agreements and/or supplemental indenture (if any)
comply with this Indenture; or
(2) the transaction is made in compliance with Section 4.10.
For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise,
in a single transaction or series of transactions) of all or substantially all of the
properties or assets of one or more Restricted Subsidiaries of the Issuer, the Equity
Interests of which constitute all or substantially all of the properties and assets of the
Issuer, will be deemed to be the transfer of all or substantially all of the properties and
assets of the Issuer.
(c) Upon any consolidation or merger of the Issuer or a Guarantor, or any transfer of
all or substantially all of the assets of the Issuer in accordance with the foregoing, in
which the Issuer or such Guarantor is not the continuing obligor under the Notes or its
Guarantee, as applicable, the surviving entity formed by such consolidation or merger or
into which the Issuer or such Guarantor is merged or the Person to which the sale,
conveyance, lease, transfer, disposition or assignment is made will succeed to, and be
substituted for, and may exercise every right and power of, the Issuer or such Guarantor
under this Indenture, the Notes and the Guarantees with the same effect as if such surviving
entity had been named therein as the Issuer or such Guarantor and, except
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in the case of a lease, the Issuer or such Guarantor, as the case may be, will be
released from the obligation to pay the principal of and interest on the Notes or in respect
of its Guarantee, as the case may be, and all of the Issuers or such Guarantors other
obligations and covenants under the Notes, this Indenture and its Guarantee, if applicable.
(d) Notwithstanding the foregoing, (i) any Restricted Subsidiary may consolidate or
merge with or into or convey, transfer or lease, in one transaction or a series of
transactions, all or substantially all of its assets to the Issuer or another Restricted
Subsidiary and (ii) the Issuer or any Guarantor may consolidate or merge with or into or
convey, transfer or lease, in one transaction or a series of transactions, all or part of
its properties and assets to the Issuer or another Guarantor or merge with a Restricted
Subsidiary of the Issuer solely for the purpose of reincorporating the Issuer or Guarantor
in a State of the United States or the District of Columbia, as long as the amount of
Indebtedness of the Issuer or such Guarantor and its Restricted Subsidiaries is not
increased thereby.
ARTICLE VI
DEFAULTS AND REMEDIES
DEFAULTS AND REMEDIES
SECTION 6.1. Events of Default. Each of the following is an Event of Default:
(1) failure to pay interest on, or Additional Interest with respect to, any of the
Notes when the same becomes due and payable and the continuance of any such failure for 30
days;
(2) failure to pay principal of or premium, if any, on any of the Notes when it becomes
due and payable, whether at Stated Maturity, upon redemption, upon purchase, upon
acceleration or otherwise;
(3) failure by the Issuer or any of its Restricted Subsidiaries to comply with any of
their respective agreements or covenants described in Section 5.1, or failure by the Issuer
to comply in respect of its obligations to make a Change of Control Offer pursuant to
Section 4.13;
(4) (a) except with respect to Section 4.3, failure by the Issuer or any Restricted
Subsidiary to comply with any other agreement or covenant in this Indenture and continuance
of this failure for 60 days after notice of the failure has been given to the Issuer by the
Trustee or to the Issuer and the Trustee by the Holders of at least 25.0% of the aggregate
principal amount of the Notes then outstanding, or (b) failure by the Issuer for 120 days
after notice of the failure has been given to the Issuer by the Trustee or to the Issuer and
the Trustee by the Holders of at least 25.0% of the aggregate principal amount of the Notes
then outstanding to comply with Section 4.3;
(5) default by the Issuer or any Restricted Subsidiary of the Issuer under any
mortgage, indenture or other instrument or agreement under which there is issued or by which
there is secured or evidenced Indebtedness for borrowed money by the Issuer or any
Restricted Subsidiary, whether such Indebtedness now exists or is incurred after the Issue
Date, which default:
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(A) is caused by a failure to pay at its Stated Maturity principal on such
Indebtedness within the applicable express grace period and any extensions thereof,
or
(B) results in the acceleration of such Indebtedness prior to its Stated
Maturity (which acceleration is not rescinded, annulled or otherwise cured within 30
days of receipt by the Issuer or such Restricted Subsidiary of notice of any such
acceleration),
and, in each case, the principal amount of such Indebtedness, together with the
principal amount of any other Indebtedness with respect to which an event described in
clause (A) or (B) has occurred and is continuing, aggregates $35.0 million or more;
(6) one or more judgments (to the extent not covered by insurance) for the payment of
money in an aggregate amount in excess of $35.0 million shall be rendered against the
Issuer, any of its Significant Subsidiaries or any combination thereof and the same shall
remain undischarged for a period of 60 consecutive days during which execution shall not be
effectively stayed;
(7) the Issuer or any Significant Subsidiary of the Issuer or group of Restricted
Subsidiaries of the Issuer that, taken together (as of the latest audited consolidated
financial statements for the Issuer and its Restricted Subsidiaries), would constitute a
Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an involuntary
case,
(C) consents to the appointment of a custodian of it or for all or
substantially all of its property,
(D) makes a general assignment for the benefit of its creditors, or
(E) generally is not paying its debts as they become due; or
(F) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Issuer or any Significant Subsidiary of
the Issuer or group of Restricted Subsidiaries of the Issuer that, taken
together (as of the latest audited consolidated financial statements for the
Issuer and its Restricted Subsidiaries), would constitute a Significant
Subsidiary, in an involuntary case;
(ii) appoints a custodian of the Issuer or any Significant Subsidiary
of the Issuer or group of Restricted Subsidiaries of the Issuer
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that, taken together (as of the latest audited consolidated financial
statements for the Issuer and its Restricted Subsidiaries), would constitute
a Significant Subsidiary or for all or substantially all of the property of
the Issuer or any of its Restricted Subsidiaries; or
(iii) orders the liquidation of the Issuer or any Significant
Subsidiary of the Issuer or group of Restricted Subsidiaries of the Issuer
that, taken together (as of the latest audited consolidated financial
statements for the Issuer and its Restricted Subsidiaries), would constitute
a Significant Subsidiary
and, in each case, the order or decree remains unstayed and in effect for 60
consecutive days; or
(8) any Guarantee ceases to be in full force and effect (other than in accordance with
the terms of such Guarantee and this Indenture) or is declared null and void and
unenforceable or found to be invalid or any Guarantor denies its liability under the
Guarantee of such Guarantor (other than by reason of release of such Guarantor from its
Guarantee in accordance with the terms of this Indenture and the Guarantee).
SECTION 6.2. Acceleration. If an Event of Default (other than an Event of Default
specified in clause (7) of Section 6.1 with respect to the Issuer) shall have occurred and be
continuing under this Indenture, the Trustee, by written notice to the Issuer, or the Holders of at
least 25.0% in aggregate principal amount of the Notes then outstanding by written notice to the
Issuer and the Trustee, may declare (an acceleration declaration) all amounts owing under the
Notes to be due and payable. Upon such acceleration declaration, the aggregate principal of and
accrued and unpaid interest on the outstanding Notes shall become due and payable immediately.
If an Event of Default specified in clause (7) of Section 6.1 occurs with respect to the
Issuer, then all unpaid principal of, and premium, if any, and accrued and unpaid interest on all
of the outstanding Notes shall ipso facto become and be immediately due and payable without any
declaration or other action or notice on the part of the Trustee or any Holder of the Notes to the
extent permitted by applicable law.
After such acceleration, but before a judgment or decree based on acceleration, the Holders of
a majority in aggregate principal amount of the Notes then outstanding may rescind and annul such
acceleration if:
(1) the rescission would not conflict with any judgment or decree;
(2) all existing Events of Default have been cured or waived other than nonpayment of
accelerated principal and interest;
(3) to the extent the payment of such interest is lawful, interest on overdue
installments of interest and overdue principal, which has become due otherwise than by such
declaration of acceleration, has been paid; and
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(4) the Issuer has paid the Trustee its reasonable compensation and reimbursed the
Trustee for its reasonable expenses, disbursements and advances.
No such rescission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.3. Other Remedies. If an Event of Default occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal, premium, if any,
interest and Additional Interest, if any, on the Notes or to enforce the performance of any
provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not
produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.4. Waiver of Past Defaults. Subject to Section 9.2, the Holders of a
majority in aggregate principal amount of the Notes then outstanding by written notice to the
Trustee may, on behalf of the Holders of all of the Notes, waive any existing Default or Event of
Default and its consequences under this Indenture except a continuing Default or Event of Default
in the payment of interest or premium or Additional Interest on, or the principal of, the Notes.
SECTION 6.5. Control by Majority. The Holders of a majority in aggregate principal
amount of the then outstanding Notes may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or exercising any trust power
conferred on it. However, (i) the Trustee may refuse to follow any direction that conflicts with
law or this Indenture, that may involve the Trustee in personal liability, or that the Trustee
determines in good faith may be unduly prejudicial to the rights of Holders not joining in the
giving of such direction and (ii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with any such direction received from the Holders.
SECTION 6.6. Limitation on Suits. A Holder may pursue a remedy with respect to this
Indenture or the Notes only if:
(1) the Holder gives to the Trustee written notice of a continuing Event of Default or
the Trustee receives such notice from the Issuer;
(2) the Holder or Holders of at least 25.0% in aggregate principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer the Trustee indemnity satisfactory to the Trustee
against any costs, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the
request and the offer of indemnity; and
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(5) during such 60-day period, the Holders of a majority in aggregate principal amount
of the outstanding Notes do not give the Trustee a direction that is inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a
preference or priority over another Holder (it being understood that the Trustee does not have an
affirmative duty to ascertain whether or not any such use by a Holder prejudices the rights of any
other Holders or obtains priority or preference over such other Holders).
SECTION 6.7. Rights of Holders of Notes to Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of principal of,
premium or Additional Interest, if any, or interest on, such Note or to bring suit for the
enforcement of any such payment, on or after the due date expressed in the Notes, shall not be
impaired or affected without the consent of the Holder.
SECTION 6.8. Collection Suit by Trustee. If an Event of Default specified in clauses
(1) or (2) of Section 6.1 occurs and is continuing, the Trustee is authorized to recover judgment
in its own name and as trustee of an express trust against the Issuer for the whole amount of
principal of, premium and interest remaining unpaid on the Notes and interest on overdue principal
and, to the extent lawful, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel.
SECTION 6.9. Trustee May File Proofs of Claim. The Trustee is authorized to file
such proofs of claim and other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any
judicial proceedings relative to the Issuer (or any other obligor upon the Notes), its creditors or
its property and shall be entitled and empowered to collect, receive and distribute any money or
other securities or property payable or deliverable upon the conversion or exchange of the Notes or
on any such claims, and any custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel, and any other amounts due the Trustee under
Section 7.7. To the extent that the payment of any such compensation, expenses, disbursements and advances to the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.7 out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be
paid out of, any and all distributions, dividends, money, securities and other properties that the
Holders may be entitled to receive in such proceeding, whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing in this Section 6.9 shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any
plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of
any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
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SECTION 6.10. Priorities. If the Trustee collects any money or property pursuant to
this Article VI, it shall pay out the money and property in the following order:
First: to the Trustee, its agents and attorneys for amounts due under Section 7.7,
including payment of all reasonable compensation, expenses and liabilities incurred, and all
advances made, by it and the costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for principal, premium, if
any, and interest and Additional Interest ratably, without preference or priority of any
kind, according to the amounts due and payable on the Notes for principal, premium, if any,
and interest and Additional Interest, respectively;
Third: without duplication, to the Holders for any other Obligations owing to the
Holders under this Indenture and the Notes; and
Fourth: to the Issuer or to such party as a court of competent jurisdiction shall
direct.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this
Section 6.10.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right or
remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by
it as the Trustee, a court in its discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess
reasonable costs, including reasonable attorneys fees and expenses, against any party litigant in
the suit, having due regard to the merits and good faith of the claims or defenses made by the
party litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.7, or a suit by Holders of more than 10.0% in principal amount of the then
outstanding Notes.
ARTICLE VII
TRUSTEE
TRUSTEE
SECTION 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture and use the same degree of care
and skill in its exercise as a prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default:
(1) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and, following the issuance of any Exchange Notes, the
TIA, and the Trustee need perform only those duties that are specifically set forth
in this Indenture and, following the issuance of any Exchange Notes, the
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TIA and no others, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(2) the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture (but
need not confirm or investigate the accuracy of mathematical calculations or other
facts stated therein); however, the Trustee shall examine the certificates and
opinions furnished to it to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(1) this paragraph does not limit the effect of paragraph (b) of this Section
7.1;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer of the Trustee, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by it pursuant
to Section 6.5; and
(4) no provision of this Indenture shall require the Trustee to expend or risk
its own funds or incur any liability.
(d) The Trustee shall not be liable for interest on or the investment of any money
received by it except as the Trustee may agree in writing with the Issuer. Money held in
trust by the Trustee need not be segregated from other funds except to the extent required
by law.
(e) Whether or not therein expressly so provided, every provision of this Indenture
that in any way relates to the Trustee is subject to this Section 7.1.
SECTION 7.2. Rights of Trustee.
(a) The Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting on any resolution, certificate, statement, instrument, opinion,
notice, report, request, direction, consent, order, bond, debenture or other document
(whether in original or facsimile form) believed by it to be genuine and to have been signed
or presented by the proper Person. The Trustee need not investigate any fact or matter
stated therein.
(b) Before the Trustee acts or refrains from acting, it may require an Officers
Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officers Certificate or
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Opinion of Counsel. Prior to taking, suffering or admitting any action, the Trustee may
consult with counsel of the Trustees own choosing, and the Trustee shall be fully protected
from liability in respect of any action taken, suffered or omitted by it hereunder in good
faith and in conclusive reliance on the advice or opinion of such counsel.
(c) The Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any attorney or agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred upon it by
this Indenture.
(e) Unless otherwise specifically provided in this Indenture, any demand, request,
direction or notice from the Issuer or a Guarantor shall be sufficient if signed by an
Officer of the Issuer or such Guarantor.
(f) The Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders unless such
Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities that might be incurred by it in compliance with
such request or direction.
(g) The Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or documents, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to examine
during normal business hours the books, records and premises of the Issuer, personally or by
agent or attorney at the sole cost of the Issuer, and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.
(h) The rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, to the Agents and to each
other agent, custodian and Person employed to act hereunder.
(i) The Trustee may request that the Issuer and each of the Guarantors shall deliver to
the Trustee an Officers Certificate setting forth the names of individuals and/or titles of
Officers of the Issuer and each Guarantor, as applicable, authorized at such time to take
specified actions pursuant to this Indenture of the Issuer, the Notes and the Guarantees,
which Officers Certificate may be signed by any Person authorized to sign an Officers
Certificate, including any Person specified as so authorized in any such certificate
previously delivered and not superseded.
(j) The Trustee shall not be deemed to have notice or be charged with knowledge of any
Default or Event of Default unless a Responsible Officer of the Trustee
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has actual knowledge thereof or the Trustee shall have received from the Issuer or any
other obligor upon the Notes or from any Holder written notice thereof at its address set
forth in Section 11.2 and such notice references the Notes and this Indenture. In the
absence of such actual knowledge or such notice, the Trustee may conclusively assume that no
such Default or Event of Default exists.
(k) In no event shall the Trustee be responsible or liable for special, indirect,
punitive, or consequential loss or damage of any kind whatsoever (including, but not limited
to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action.
(l) The Trustee shall not be required to give any bond or surety in respect of the
performance of its powers and duties hereunder.
SECTION 7.3. Individual Rights of the Trustee. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or
any Affiliate of the Issuer with the same rights it would have if it were not Trustee. However, in
the event that the Trustee acquires any conflicting interest (as defined in the TIA), it must
eliminate such conflict within 90 days, apply to the SEC for permission to continue as Trustee (if
this Indenture has been qualified under the TIA) or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Section 7.10 and Section 7.11.
SECTION 7.4. Trustees Disclaimer. The Trustee shall not be responsible for and
makes no representation as to the validity or adequacy of this Indenture, the Notes or any
Guarantee, it shall not be accountable for the use of the proceeds from the Notes or any money paid
to the Issuer or upon the Issuers direction under any provision of this Indenture, it shall not be
responsible for the use or application of any money received by any Paying Agent other than the
Trustee, and it shall not be responsible for any statement or recital herein or any statement in
the Notes, any Officers Certificate delivered to the Trustee hereunder, or any other document in
connection with the sale of the Notes or pursuant to this Indenture other than the Trustees
certificate of authentication hereunder.
SECTION 7.5. Notice of Defaults. If a Default or Event of Default occurs and is
continuing and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall
deliver to Holders a notice of the Default or Event of Default within 90 days after it occurs.
Except in the case of a Default or Event of Default in payment of principal of, premium, if any, or
interest or Additional Interest on any Note, the Trustee may withhold the notice if and so long as
the board of directors, the executive committee or a trust committee of directors or Responsible
Officers of the Trustee in good faith determines that withholding the notice is in the interests of
the Holders.
SECTION 7.6. Reports by Trustee to Holders of the Notes. Within 60 days after each
January 15 beginning with January 15, 2012, and for so long as Notes remain outstanding, the
Trustee shall transmit to the Holders a brief report dated as of such reporting date that complies
with TIA § 313(a) (but if no event described in TIA § 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also shall
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comply with TIA § 313(b). The Trustee shall also transmit by mail all reports as required by
TIA § 313(c).
A copy of each report at the time of its mailing to the Holders shall be mailed to the Issuer
and filed with the SEC and each stock exchange, if any, on which the Issuer has informed the
Trustee in writing the Notes are listed in accordance with TIA § 313(d). The Issuer shall promptly
notify the Trustee in writing when the Notes are listed on any stock exchange and of any delisting
thereof.
SECTION 7.7. Compensation and Indemnity. The Issuer shall pay to the Trustee from
time to time compensation for its acceptance of this Indenture and for all services rendered by it
hereunder as agreed upon in writing. The Trustees compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee, as
applicable, promptly upon request for all reasonable disbursements, advances and expenses incurred
or made by it in addition to the compensation for its services. Such expenses shall include the
reasonable compensation, disbursements and expenses of the Trustees agents and counsel.
Each of the Issuer and the Guarantors, jointly and severally, shall indemnify the Trustee
(which for purposes of this Section 7.7 shall include its officers, directors, employees and
agents) against any and all claims, damages, losses, liabilities, costs or expenses incurred by it
(including, without limitation, the fees and expenses of its agents and counsel) arising out of or
in connection with the acceptance or administration of its duties under this Indenture, the
performance of its obligations and/or exercise of its rights hereunder, including the costs and
expenses of enforcing this Indenture against the Issuer or any Guarantor (including this Section
7.7) and defending itself against any claim (whether asserted by the Issuer or any Holder or any
other Person) or liability in connection with the exercise or performance of any of its powers or
duties hereunder, except to the extent any such loss, claim, damage, liability or expense shall be
caused by its own negligence, bad faith or willful misconduct. The Trustee shall notify the Issuer
promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the
Issuer shall not relieve the Issuer of its obligations hereunder. The Trustee may have one separate
counsel, and the Issuer shall pay the reasonable fees and expenses of such counsel for the Trustee.
The Issuer need not pay for any settlement made without its consent, which consent shall not be
unreasonably withheld.
The obligations of the Issuer and the Guarantors under this Section 7.7 shall survive the
satisfaction and discharge of this Indenture, the payment of the Notes or the resignation or
removal of the Trustee.
To secure the Issuers payment obligations in this Section 7.7, the Trustee shall have a Lien
prior to the Notes on all money or property held or collected by the Trustee, except that held in
trust to pay principal or interest, if any, on particular Notes. Such Lien shall survive the
satisfaction and discharge of this Indenture, the payment of the Notes and the resignation or
removal of the Trustee.
When the Trustee incurs expenses or renders services after an Event of Default specified in
Section 6.1(7) occurs, the expenses and the compensation for the services (including the fees
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and expenses of its agents and counsel) are intended to constitute expenses of administration
under any Bankruptcy Law.
The Trustee shall comply with the provisions of TIA § 313(b)(2) to the extent applicable.
SECTION 7.8. Replacement of Trustee. A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the successor trustees
acceptance of appointment as provided in this Section 7.8.
The Trustee may resign in writing at any time and be discharged from the trust hereby created
by so notifying the Issuer. The Holders of a majority in principal amount of the then outstanding
Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing. The Issuer may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is
entered with respect to the Trustee under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of the Trustee for
any reason, the Issuer shall promptly appoint a successor trustee. Within one year after the
successor trustee takes office, the Holders of a majority in principal amount of the then
outstanding Notes may appoint a successor trustee to replace the successor trustee appointed by the
Issuer.
If a successor trustee does not take office within 30 days after the retiring Trustee resigns
or is removed, such retiring Trustee (at the expense of the Issuer), the Issuer or the Holders of
at least 10.0% in principal amount of the then outstanding Notes may petition any court of
competent jurisdiction for the appointment of a successor trustee.
If the Trustee, after written request by any Holder who has been a Holder for at least six
months, fails to comply with Section 7.10, such Holder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor trustee.
A successor trustee shall deliver a written acceptance of its appointment to the retiring
Trustee and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee shall
become effective, and the successor trustee shall have all the rights, powers and the duties of the
Trustee under this Indenture. The successor trustee shall mail a notice of its succession to the
Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee; provided that all sums owing to such Trustee hereunder have been paid and
subject to the Lien provided for in Section 7.7. Notwithstanding replacement of the Trustee
pursuant to this Section 7.8, the Issuers and the Guarantors obligations under Section 7.7 shall
continue for the benefit of the retiring Trustee.
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SECTION 7.9. Successor Trustee by Merger, Etc. If the Trustee or any Agent
consolidates, merges or converts into, or transfers all or substantially all of its corporate trust
business (including this transaction) to, another corporation, the successor corporation without
any further act shall be the successor Trustee or any Agent, as applicable.
SECTION 7.10. Eligibility; Disqualification. There shall at all times be a Trustee
hereunder that is a corporation organized and doing business under the laws of the United States or
of any state thereof that is authorized under such laws to exercise corporate trustee power and
that is subject to supervision or examination by federal or state authorities. Such Trustee
together with its affiliates shall at all times have a combined capital surplus of at least $50.0
million as set forth in its most recent annual report of condition.
This Indenture shall always have a Trustee who satisfies the requirements of TIA §§ 310(a)(l),
(2) and (5). Such Trustee is subject to TIA § 310(b) including the provision in § 310(b)(1) and
(3); provided that there shall be excluded from the operation of TIA § 310(b)(1) any indenture or
indentures under which other securities, or conflicts of interest or participation in other
securities, of the Issuer or the Guarantors are outstanding if the requirements for exclusion set
forth in TIA § 310(b)(1) are met.
SECTION 7.11. Preferential Collection of Claims Against the Issuer. The Trustee is
subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who
has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated therein.
ARTICLE VIII
DEFEASANCE; DISCHARGE OF THIS INDENTURE
DEFEASANCE; DISCHARGE OF THIS INDENTURE
SECTION 8.1. Option to Effect Legal Defeasance or Covenant Defeasance. The Issuer
may, by delivery of an Officers Certificate, at any time, elect to have either Section 8.2 or
Section 8.3 applied to all outstanding Notes upon compliance with the conditions set forth below in
this Article VIII.
SECTION 8.2. Legal Defeasance. Upon the Issuers exercise under Section 8.1 of the
option applicable to this Section 8.2, the Issuer shall, subject to the satisfaction of the
conditions set forth in Section 8.4, be deemed to have been discharged from its obligations with
respect to all outstanding Notes on the date the conditions set forth below are satisfied
(hereinafter, Legal Defeasance). For this purpose, Legal Defeasance means that the Issuer and the
Guarantors shall be deemed to have paid and discharged the entire Obligations represented by the
Notes and the Guarantees, which shall thereafter be deemed to be outstanding only for the purposes
of Section 8.5 and the other Sections of this Indenture referred to in (a) and (b) below, and to
have satisfied all of its other Obligations under such Notes, Guarantees and this Indenture (and
the Trustee, on written demand of and at the expense of the Issuer, shall execute instruments
acknowledging the same), and this Indenture shall cease to be of further effect as to all such
Notes and Guarantees, except for the following provisions which shall survive until otherwise
terminated or discharged hereunder: (a) the rights of Holders of outstanding Notes to receive
payments in respect of the principal of, and interest and premium and Additional Interest, if any,
on such Notes when such payments are due from the trust funds referred to in Section 8.4(1); (b)
the Issuers obligations
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with respect to such Notes under Section 2.2, Section 2.3, Section 2.4, Section 2.6, Section
2.7, Section 2.10, and Section 4.2; (c) the rights, powers, trusts, duties and immunities of the
Trustee, including without limitation thereunder, under Section 7.7, Section 8.5 and Section 8.7
and the obligations of the Issuer and the Guarantors in connection therewith; and (d) the
provisions of this Article VIII. Subject to compliance with this Article VIII, the Issuer may
exercise its option under this Section 8.2 notwithstanding the prior exercise of its option under
Section 8.3.
SECTION 8.3. Covenant Defeasance. Upon the Issuers exercise under Section 8.1 above of the
option applicable to this Section 8.3, the Issuer shall, subject to the satisfaction of the
conditions set forth in Section 8.4 below, be released from its obligations under Section 4.3,
Section 4.7, Section 4.8, Section 4.9, Section 4.10, Section 4.11, Section 4.12, Section 4.13,
Section 4.15, Section 4.16, Section 4.17 and Section 5.1(a)(3) on and after the date the conditions
set forth below are satisfied (hereinafter, Covenant Defeasance), and the Notes shall thereafter
be deemed not outstanding for the purposes of any direction, waiver, consent or declaration or act
of Holders (and the consequences of any thereof) in connection with such covenants, but shall
continue to be deemed outstanding for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with respect to the outstanding Notes, the Issuer or any of its Subsidiaries
may omit to comply with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such covenant to any
other provision herein or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 6.1, but, except as specified above, the remainder of
this Indenture and such Notes shall be unaffected thereby. In addition, upon the Issuers exercise
under Section 8.1 of the option applicable to this Section 8.3, subject to the satisfaction of the
conditions set forth in Section 8.4, clauses (3) through (8) of Section 6.1 shall not constitute
Events of Default.
SECTION 8.4. Conditions to Legal or Covenant Defeasance. The following shall be the
conditions to the application of either Section 8.2 or Section 8.3 to the outstanding Notes:
(1) the Issuer must irrevocably deposit with the Trustee, as trust funds, in trust
solely for the benefit of the Holders, U.S. dollars, U.S. Government Obligations or a
combination thereof, in such amounts as will be sufficient (without consideration of any
reinvestment of interest) in the opinion of a nationally recognized investment bank,
appraisal firm or firm of independent public accountants selected by the Issuer and
delivered to the Trustee, to pay the principal of and interest and Additional Interest, if
any, on the outstanding Notes on the stated date for payment thereof or on the applicable
redemption date, as the case may be,
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an
Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming
that:
(A) the Issuer has received from, or there has been published by the United
States Internal Revenue Service, a ruling, or
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(B) since the date of this Indenture, there has been a change in the applicable
U.S. federal income tax law,
in either case to the effect that, and based thereon, such Opinion of Counsel shall confirm
that, the Holders of the outstanding Notes will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of the Legal Defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such Legal Defeasance had not occurred,
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee
an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming
that the Holders of the outstanding Notes will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of the Covenant Defeasance and will be subject to
U.S. federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if the Covenant Defeasance had not occurred,
(4) no Default shall have occurred and be continuing on the date of such deposit (other
than a Default resulting from the borrowing of funds to be applied to such deposit and the
grant of any Lien securing such borrowings),
(5) the Legal Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under any other material agreement or instrument to
which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its
Subsidiaries is bound,
(6) the Issuer shall have delivered to the Trustee an Officers Certificate stating
that the deposit was not made by it with the intent of preferring the Holders over any other
of its creditors or with the intent of defeating, hindering, delaying or defrauding any
other of its creditors or others, and
(7) the Issuer shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel to the effect that the conditions precedent provided for in clauses (1)
through (6) of this Section 8.4 have been complied with.
SECTION 8.5. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other
Miscellaneous Provisions. Subject to Section 8.6, all U.S. dollar and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.5, the Deposit Trustee) pursuant to Section
8.4 or Section 8.8 in respect of the outstanding Notes shall be held in trust, shall not be
invested, and shall be applied by the Deposit Trustee in accordance with the provisions of such
Notes and this Indenture to the payment, either directly or through any Paying Agent (including the
Issuer or any Subsidiary acting as Paying Agent) as the Deposit Trustee may determine, to the
Holders of such Notes of all sums due and to become due thereon in respect of principal, premium,
if any, and interest and Additional Interest, if any, but such money need not be segregated from
other funds except to the extent required by law.
The Issuer shall pay and indemnify the Deposit Trustee against any tax, fee or other charge
imposed on or assessed against the cash or non-callable U.S. Government Obligations
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deposited pursuant to Section 8.4 or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of the Holders of the
outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the Deposit Trustee shall
deliver or pay to the Issuer from time to time upon the written request of the Issuer and be
relieved of all liability with respect to any U.S. dollars or non-callable U.S. Government
Obligations held by it as provided in Section 8.4 or Section 8.8 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Deposit Trustee (which may be the opinion delivered under Section 8.4(1)),
are in excess of the amount thereof that would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance or satisfaction and discharge, as the case may
be.
SECTION 8.6. Repayment to Issuer. Any money deposited with the Trustee or any Paying
Agent, or then held by the Issuer, in trust for the payment of the principal of, premium, if any,
or interest or Additional Interest, if any, on any Note and remaining unclaimed for two years after
such principal and premium, if any, or interest or Additional Interest has become due and payable
shall be paid to the Issuer on its written request or (if then held by the Issuer) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof; and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Issuer cause to be published once,
in the New York Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be less than 30 days
from the date of such notification or publication, any unclaimed balance of such money then
remaining shall be repaid to the Issuer.
SECTION 8.7. Reinstatement. If the Trustee or Paying Agent is unable to apply any
U.S. dollars or U.S. Government Obligations in accordance with Section 8.2, Section 8.3 or Section
8.8, as the case may be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the obligations of the
Issuer and the Guarantors under this Indenture and the Notes shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.2, Section 8.3 or Section 8.8 until such time
as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.2,
Section 8.3 or Section 8.8, as the case may be; provided, however, that, if the Issuer makes any
payment of principal of, premium, if any, or interest on any Note following the reinstatement of
its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money held by the Trustee or Paying Agent.
SECTION 8.8. Discharge. This Indenture will be discharged and will cease to be of
further effect (except as to rights of registration of transfer or exchange of Notes which shall
survive until all Notes have been canceled and the rights, protections and immunities of the
Trustee) as to all outstanding Notes when either:
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(a) all the Notes that have been authenticated and delivered (except lost, stolen or
destroyed Notes which have been replaced or paid and Notes for whose payment money has been
deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to
the Issuer or discharged from this trust), have been delivered to the Trustee for
cancellation; or
(b)
(1) all Notes not delivered to the Trustee for cancellation otherwise (i) have
become due and payable, (ii) will become due and payable, or may be called for
redemption, within one year or (iii) have been called for redemption pursuant to
Section 3.7 and, in any case, the Issuer has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust solely for the benefit of the
Holders, cash in U.S. dollars, U.S. Government Obligations or a combination thereof,
in such amounts as will be sufficient (without consideration of any reinvestment of
interest) to pay and discharge the entire Indebtedness (including all principal and
accrued interest and Additional Interest, if any) on the Notes not theretofore
delivered to the Trustee for cancellation;
(2) the Issuer has paid or caused to be paid all other sums payable by it under
this Indenture; and
(3) the Issuer has delivered irrevocable instructions to the Trustee under this
Indenture to apply the deposited money toward the payment of the Notes at maturity
or on the date of redemption, as the case may be.
In addition, the Issuer must deliver an Officers Certificate and an Opinion of Counsel to the
Trustee stating that all conditions precedent to satisfaction and discharge have been complied
with.
After the Notes are no longer outstanding, the Issuers and the Guarantors obligations in
Section 7.7, Section 8.5 and Section 8.7 shall survive any discharge pursuant to this Section 8.8.
After such delivery or irrevocable deposit and receipt of the Officers Certificate and
Opinion of Counsel, the Trustee, upon written request, shall acknowledge in writing the discharge
of the Issuers obligations under the Notes and this Indenture except for those surviving
obligations specified above.
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.1. Without Consent of Holders of the Notes. Notwithstanding Section 9.2,
without the consent of any Holders, the Issuer, the Guarantors and the Trustee, at any time and
from time to time, may amend or supplement this Indenture, the Guarantees or the Notes issued
hereunder for any of the following purposes:
(1) to cure any ambiguity, defect or inconsistency;
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(2) to provide for uncertificated Notes in addition to or in place of certificated
Notes;
(3) to provide for the assumption of the Issuers or a Guarantors obligations to the
Holders in the case of a merger, consolidation or sale of all or substantially all of the
Issuers or such Guarantors assets, or sale, lease, transfer, conveyance or other
disposition or assignment in accordance with Section 5.1;
(4) to add any Guarantee or to effect the release of any Guarantor from any of its
obligations under its Guarantee or the provisions of this Indenture (to the extent in
accordance with this Indenture);
(5) to make any change that would provide any additional rights or benefits to the
Holders or that does not materially adversely affect the rights of any Holder;
(6) to effect or maintain the qualification of this Indenture under the TIA;
(7) to secure the Notes or any Guarantees or any other obligation under this Indenture;
(8) to evidence and provide for the acceptance of appointment by successor trustees;
(9) to conform the text of this Indenture or the Notes to any provision of the
Description of the Notes contained in the Offering Circular, to the extent that such
provision in the Description of the Notes was intended to be a substantially verbatim
recitation of a provision of this Indenture, the Guarantees or the Notes, as evidenced by an
Officers Certificate of the Issuer; or
(10) to provide for the issuance of Additional Notes or Exchange Notes in accordance
with this Indenture and the Registration Rights Agreement, as the case may be.
After an amendment under this Indenture becomes effective, the Issuer shall deliver to Holders
of the Notes a notice briefly describing such amendment. However, the failure to give such notice
to all Holders, or any defect therein, will not impair or affect the validity of the amendment.
SECTION 9.2. With Consent of Holders of Notes. With the consent of the Holders of
not less than a majority in aggregate principal amount of the Notes then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or tender offer or exchange
offer for, the Notes), the Issuer, the Guarantors and the Trustee may amend or supplement this
Indenture, the Notes or any Guarantees or, subject to Section 6.7, waive any existing Default or
Event of Default or compliance with any provision of this Indenture or the Notes; provided,
however, that no such amendment, supplement or waiver shall, without the consent of the Holder of
each outstanding Note affected thereby (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, the Notes):
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(1) reduce, or change the maturity of, the principal of any Note;
(2) reduce the rate of or extend the time for payment of interest on any Note;
(3) reduce any premium payable upon redemption of the Notes or change the date on which
any Notes are subject to redemption (other than the notice provisions) or waive any payment
with respect to the redemption of the Notes; provided, however, that solely for the
avoidance of doubt, and without any other implication, any purchase or repurchase of Notes
(including pursuant to Section 4.10 and Section 4.13) shall not be deemed a redemption of
the Notes;
(4) make any Note payable in money or currency other than that stated in the Notes;
(5) modify or change any provision of this Indenture or the related definitions to
affect the ranking of the Notes or any Guarantee in a manner that adversely affects the
Holders;
(6) reduce the percentage of Holders necessary to consent to an amendment or waiver to
this Indenture or the Notes;
(7) waive a default in the payment of principal of or premium or interest or Additional
Interest, if any, on any Notes (except a rescission of acceleration of the Notes by the
Holders thereof as provided in this Indenture and a waiver of the payment default that
resulted from such acceleration);
(8) impair the rights of Holders to receive payments of principal of or interest or
Additional Interest, if any, on the Notes on or after the due date therefor or to institute
suit for the enforcement of any payment on the Notes;
(9) release any Guarantor from any of its obligations under its Guarantee or this
Indenture, except as permitted by this Indenture; or
(10) make any change in these amendment and waiver provisions.
It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the
particular form of any proposed amendment or waiver, but it shall be sufficient if such consent
approves the substance thereof.
SECTION 9.3. Compliance with Trust Indenture Act. Every amendment or supplement to
this Indenture or the Notes or the Guarantees shall be set forth in an amended or supplemental
indenture that complies with the TIA as then in effect.
SECTION 9.4. Revocation and Effect of Consents. Until an amendment, supplement or
waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the
Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt
as the consenting Holders Note, even if notation of the consent is not made on the Note. However,
any such Holder or subsequent Holder may revoke the consent as to its Note if the
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Trustee receives written notice of revocation before the date the waiver, supplement or
amendment becomes effective. When an amendment, supplement or waiver becomes effective in
accordance with its terms, it thereafter binds every Holder.
The Issuer may, but shall not be obligated to, fix a record date for determining which Holders
consent to such amendment, supplement or waiver.
SECTION 9.5. Notation on or Exchange of Notes. The Trustee may place an appropriate
notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer
in exchange for all Notes may issue and the Trustee shall authenticate new Notes that reflect the
amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not affect the validity and
effect of such amendment, supplement or waiver.
SECTION 9.6. Trustee to Sign Amendments, Etc. The Trustee shall sign any amended or
supplemental indenture authorized pursuant to this Article IX if the amendment or supplement does
not adversely affect the rights, duties, liabilities or immunities of the Trustee. In signing or
refusing to sign any amendment or supplemental indenture, the Trustee shall be provided with and
(subject to Section 7.1) shall be fully protected in relying upon an Officers Certificate and an
Opinion of Counsel stating that the execution of such amendment or supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent thereto have been met
or waived.
ARTICLE X
GUARANTEES
GUARANTEES
SECTION 10.1. Guarantees.
(a) Each Guarantor hereby jointly and severally, fully and unconditionally guarantees
the Notes and obligations of the Issuer hereunder and thereunder, and guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee, that: (i)
the principal of and premium, if any, and interest and Additional Interest, if any, on the
Notes shall be paid in full when due, whether at Stated Maturity, by acceleration, call for
redemption or otherwise, together with interest on the overdue principal, if any, and
interest on any overdue interest and Additional Interest, if any, to the extent lawful, and
all other Obligations of the Issuer to the Holders or the Trustee under this Indenture or
the Notes shall be paid in full or performed, all in accordance with the terms hereof and
thereof; and (ii) in case of any extension of time of payment or renewal of any Notes or of
any such other obligations, the same shall be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at Stated Maturity, by
acceleration or otherwise. Each of the Guarantees shall be a guarantee of payment and not of
collection.
(b) Each Guarantor hereby agrees that its obligations hereunder shall be unconditional,
irrespective of the validity, regularity or enforceability of the Notes or this Indenture,
the absence of any action to enforce the same, any waiver or consent by any Holder with
respect to any provisions hereof or thereof, the recovery of any judgment
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against the Issuer, any action to enforce the same or any other circumstance which
might otherwise constitute a legal or equitable discharge or defense of a Guarantor.
(c) Each Guarantor hereby waives the benefits of diligence, presentment, demand for
payment, filing of claims with a court in the event of insolvency or bankruptcy of the
Issuer, any right to require a proceeding first against the Issuer or any other Person,
protest, notice and all demands whatsoever and covenants that the Guarantee of such
Guarantor shall not be discharged as to any Note or this Indenture except by complete
performance of the obligations contained in such Note and this Indenture and such Guarantee.
Each of the Guarantors hereby agrees that, in the event of a Default in payment of principal
or premium, if any, or interest on any Note, whether at its Stated Maturity, by
acceleration, call for redemption, purchase or otherwise, legal proceedings may be
instituted by the Trustee on behalf of, or by, the Holder of such Note, subject to the terms
and conditions set forth in this Indenture, directly against each of the Guarantors to
enforce each such Guarantors Guarantee without first proceeding against the Issuer or any
other Guarantor. Each Guarantor agrees that if, after the occurrence and during the
continuance of an Event of Default, the Trustee or any of the Holders are prevented by
applicable law from exercising their respective rights to accelerate the maturity of the
Notes, to collect interest on the Notes, or to enforce or exercise any other right or remedy
with respect to the Notes, such Guarantor shall pay to the Trustee for the account of the
Holders, upon demand therefor, the amount that would otherwise have been due and payable had
such rights and remedies been permitted to be exercised by the Trustee or any of the Holders
and any other amounts due and owing to the Trustee under this Indenture.
(d) If any Holder or the Trustee is required by any court or otherwise to return to the
Issuer or any Guarantor, or any custodian, trustee, liquidator or other similar official
acting in relation to the Issuer or any Guarantor, any amount paid by any of them to the
Trustee or such Holder, the Guarantee of each of the Guarantors, to the extent theretofore
discharged, shall be reinstated in full force and effect. This paragraph (d) shall remain
effective notwithstanding any contrary action which may be taken by the Trustee or any
Holder in reliance upon such amount required to be returned. This paragraph (d) shall
survive the termination of this Indenture.
(e) Each Guarantor further agrees that, as between each Guarantor, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article VI for the purposes of the
Guarantee of such Guarantor, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby, and (y) in the
event of any acceleration of such obligations as provided in Article VI, such obligations
(whether or not due and payable) shall forthwith become due and payable by each Guarantor
for the purpose of the Guarantee of such Guarantor.
(f) Each Guarantor that makes a payment for distribution under its Guarantee is
entitled upon payment in full of all guaranteed obligations under this Indenture to seek
contribution from each other Guarantor in a pro rata amount of such payment based on
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the respective net assets of all the Guarantors at the time of such payment in
accordance with GAAP.
SECTION 10.2. Execution and Delivery of Guarantee. To evidence its Guarantee set
forth in Section 10.1, each Guarantor agrees that this Indenture or a supplemental indenture in
substantially the form attached hereto as Exhibit B shall be executed on behalf of such
Guarantor by an Officer of such Guarantor (or, if an officer is not available, by a board member or
director) on behalf of such Guarantor by manual or facsimile signature. Each Guarantor hereby
agrees that its Guarantee set forth in Section 10.1 hereof shall remain in full force and effect
notwithstanding the absence of the endorsement of any notation of such Guarantee on the Notes. In
case the Officer, board member or director of such Guarantor whose signature is on this Indenture
or supplemental indenture, as applicable, no longer holds office at the time the Trustee
authenticates any Note, the Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantors.
SECTION 10.3. Severability. In case any provision of any Guarantee shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
SECTION 10.4. Limitation of Guarantors Liability. Each Guarantor and by its
acceptance hereof each Holder confirms that it is the intention of all such parties that the
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance for purposes of the
Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any
similar federal or state law or the provisions of its local law relating to fraudulent transfer or
conveyance. To effectuate the foregoing intention, the Trustee, the Holders and Guarantors hereby
irrevocably agree that the obligations of such Guarantor under its Guarantee (other than a company
that is a direct or indirect parent of the Issuer) shall be limited to the maximum amount that will
not, after giving effect to all other contingent and fixed liabilities of such Guarantor
(including, without limitation, any guarantees under the Credit Agreement) and after giving effect
to any collections from, rights to receive contribution from or payments made by or on behalf of
any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee,
result in the obligations of such Guarantor under its Guarantee constituting a fraudulent
conveyance, fraudulent preference or fraudulent transfer or otherwise reviewable under applicable
law.
SECTION 10.5. Releases. A Guarantor shall be released and relieved of any
Obligations under its Guarantee, the Registration Rights Agreement and this Indenture upon:
(a) any sale, exchange or transfer (by merger, consolidation or otherwise) of the
Equity Interests of such Guarantor after which the applicable Guarantor is no longer a
Restricted Subsidiary, which sale, exchange or transfer does not violate the applicable
provisions of this Indenture;
(b) the proper Designation of such Guarantor by the Issuer as an Unrestricted
Subsidiary in accordance with the terms of this Indenture;
87
(c) the release or discharge of all outstanding guarantees by the Guarantor of
Indebtedness of the Issuer and its Restricted Subsidiaries under any Credit Facility;
(d) if the Issuer exercises its Legal Defeasance option or its Covenant Defeasance
option pursuant to Section 8.2 or Section 8.3 or if its Obligations under this Indenture are
discharged in accordance with Section 8.8; or
(e) dissolution of such Guarantor provided no Default or Event of Default has occurred
that is continuing.
Upon delivery to the Trustee of an Officers Certificate and an Opinion of Counsel to the
effect that all conditions precedent to the release of a Guarantors Guarantee set forth in this
Indenture have been satisfied, the Trustee shall execute any documents reasonably requested by the
Issuer in writing in order to evidence the release of any Guarantor from its obligations under its
Guarantee.
Any Guarantor not released from its obligations under its Guarantee shall remain liable for
the full amount of principal of and interest on the Notes and for the other obligations of any
Guarantor under this Indenture as provided in this Article X.
SECTION 10.6. Benefits Acknowledged. Each Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements contemplated by this Indenture
and that its guarantee and waivers pursuant to its Guarantee are knowingly made in contemplation of
such benefits.
ARTICLE XI
MISCELLANEOUS
MISCELLANEOUS
SECTION 11.1. Trust Indenture Act Controls. If any provision of this Indenture
limits, qualifies or conflicts with the duties imposed by TIA § 318(c), such imposed duties shall
control.
SECTION 11.2. Notices. Any notice, request, direction, instruction or communication
by the Issuer, any Guarantor or the Trustee to the others is duly given if in writing and delivered
in person or mailed by first class mail (registered or certified, return receipt requested),
telecopier or overnight air courier guaranteeing next day delivery, to the addresses set forth
below:
If to the Issuer or any Guarantor:
Oil States International, Inc.
333 Clay Street, Suite 4620
Houston, Texas 77002
Facsimile: (713) 652-0582
Attention: Chief Financial Officer
333 Clay Street, Suite 4620
Houston, Texas 77002
Facsimile: (713) 652-0582
Attention: Chief Financial Officer
With a copy (which shall not constitute notice) to:
Vinson & Elkins, LLP
1001 Fannin Street, Suite 2300
Houston, Texas 77002
Fax: (713) 615-5141
Attention: David H. Stone
1001 Fannin Street, Suite 2300
Houston, Texas 77002
Fax: (713) 615-5141
Attention: David H. Stone
88
If to the Trustee:
Wells Fargo Bank, N.A.
1445 Ross Avenue, 2nd Floor
MAC T5303-022
Dallas, Texas 75202-2812
Facsimile: (214) 777-4086
Attention: Corporate, Municipal & Escrow Services
1445 Ross Avenue, 2nd Floor
MAC T5303-022
Dallas, Texas 75202-2812
Facsimile: (214) 777-4086
Attention: Corporate, Municipal & Escrow Services
The parties hereto, by written notice to the others, may designate additional or different
addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders and the Trustee ) shall be
deemed to have been duly given: at the time delivered by hand, if personally delivered; five (5)
Business Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier promising next Business Day delivery.
Any notice or communication to a Holder and the Trustee shall be mailed by first class mail or
by overnight air courier promising next Business Day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to any Person described
in TIA § 313(c), to the extent required by the TIA. Notwithstanding the foregoing, as long as the
Notes are Global Notes, notices to be given to the Holders shall be given to the Depositary, in
accordance with its applicable policies as in effect from time to time. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect its sufficiency with respect to
other Holders.
In respect of this Indenture, the Trustee shall not have any duty or obligation to verify or
confirm that the Person sending instructions, directors, reports, notices or other communications
or information by electronic transmission is, in fact, a Person authorized to give such
instructions, directors, reports notices or other communications or information on behalf of the
party purporting to send such electronic transmission; and the Trustee shall not have any liability
for any losses, liability, costs or expenses incurred or sustained by any party as a result of such
reliance upon or compliance with such instructions directors, reports, notices or other
communications or information. Each other party, agrees to assume all risks arising out of the use
of electronic methods to submit instructions, directions, reports, notices or other communications
or indemnifications to the Trustee, including without limitation the risk of the Trustee acting on
unauthorized instructions, notices, reports or other communications or information, and the risks
of interception and misuse by third parties.
If a notice or communication is delivered in the manner provided above within the time
prescribed, it is duly given, whether or not the addressee receives it, except in the case of
notices or communications given to the Trustee, which shall be effective only upon actual receipt.
89
If the Issuer delivers a notice or communication to Holders, it shall mail a copy to the
Trustee and each Agent at the same time.
SECTION 11.3. Communication by Holders of Notes with Other Holders of Notes. Holders
may communicate pursuant to TIA § 312(b) with other Holders with respect to their rights under this
Indenture or the Notes. The Issuer, the Trustee, the Agents and anyone else shall have the
protection of TIA § 312(c).
SECTION 11.4. Certificate and Opinion as to Conditions Precedent. Upon any request
or application by the Issuer to the Trustee to take any action under this Indenture (other than in
connection with the issuance of the Initial Notes), the Issuer shall furnish to the Trustee upon
request:
(a) an Officers Certificate (which shall include the statements set forth in Section
11.5) stating that, in the opinion of the signers, all conditions precedent and covenants,
if any, provided for in this Indenture relating to the proposed action have been satisfied;
and
(b) an Opinion of Counsel (which shall include the statements set forth in Section
11.5) stating that, in the opinion of such counsel, all such conditions precedent and
covenants have been satisfied.
SECTION 11.5. Statements Required in Certificate or Opinion. Each certificate or
opinion with respect to compliance with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of
TIA § 314(e) and shall include substantially:
(a) a statement that the Person making such certificate or opinion has read and
understands such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made such
examination or investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such condition or
covenant has been satisfied.
SECTION 11.6. Rules by Trustee and Agents. The Trustee may make reasonable rules for
action by or at a meeting of Holders. Each of the Agents may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.7. No Personal Liability of Directors, Officers, Employees and
Stockholders. No director, officer, employee, incorporator or stockholder, partner or member
of the Issuer or any Guarantor, as such, will have any liability for any indebtedness, obligations
or
90
liabilities of the Issuer under the Notes or this Indenture or of any Guarantor under its
Guarantee or for any claim based on, in respect of, or by reason of, such obligations or their
creation. Each
Holder by accepting a Note waives and releases all such liability. The waiver and release are
part of the consideration for issuance of the Notes and the Guarantees.
SECTION 11.8. Governing Law; Consent to Jurisdiction. THE LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE NOTES AND THE GUARANTEES. Each of the
parties to this Indenture each hereby irrevocably submits to the non-exclusive jurisdiction of any
New York State or federal court sitting in the Borough of Manhattan in The City of New York in any
action or proceeding arising out of or relating to the Notes, the Guarantees or this Indenture, and
all such parties hereby irrevocably agree that all claims in respect of such action or proceeding
may be heard and determined in such New York State or federal court and hereby irrevocably waive,
to the fullest extent that they may legally do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding.
SECTION 11.9. No Adverse Interpretation of Other Agreements. This Indenture may not
be used to interpret any other indenture, loan or debt agreement of the Issuer or its Subsidiaries
or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
SECTION 11.10. Successors. All agreements of the Issuer and the Guarantors in this
Indenture and the Notes and the Guarantees, as applicable, shall bind their respective successors
and assigns. All agreements of the Trustee in this Indenture shall bind its respective successors
and assigns.
SECTION 11.11. Severability. In case any provision in this Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 11.12. Counterpart Originals. The parties may sign any number of copies of
this Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.13. Table of Contents, Headings, Etc. The Table of Contents,
Cross-Reference Table and Headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part of this Indenture and
shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 11.14. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by such Holders
in person or by agent duly appointed in writing (or, with respect to Global Notes, otherwise
in accordance with the rules and procedures of the Depositary); and, except as herein
otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
91
required, to the
Issuer. Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the Act of Holders signing
such instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this
Section 11.14.
(b) The fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing acknowledged to such
officer the execution thereof. Where such execution is by a signer acting in a capacity
other than such signers individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signers authority. The fact and date of the execution
of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the register maintained by the Registrar
hereunder.
(d) Any request, demand, authorization, direction, notice, consent, waiver or other Act
of the Holder of any Note shall bind every future Holder of the same Note and the Holder of
every Note issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or
the Issuer in reliance thereon, whether or not notation of such action is made upon such
Note.
(e) If the Issuer shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Issuer may, at its option, by or
pursuant to a board resolution of the Issuers Board of Directors, fix in advance a record
date for the determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Issuer shall have no obligation to
do so. If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record date, but only
the Holders of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite proportion of
outstanding Notes have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that purpose the
outstanding Notes shall be computed as of such record date; provided that no such
authorization, agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this Indenture not
later than six months after the record date.
SECTION 11.15. Force Majeure. In no event shall the Trustee or Agent be responsible
or liable for any failure or delay in the performance of its obligations hereunder arising out of
or caused by, directly or indirectly, forces beyond its control, including, without limitation,
fire, riots, strikes, or stoppages for any reason, embargoes, governmental actions, accidents, acts
of
92
war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services, it being understood that the Trustee shall use reasonable efforts which
are consistent with accepted practices in the U.S. banking industry to resume performance as soon
as practicable under the circumstances.
SECTION 11.16. Legal Holidays. If any payment date with respect to the Notes falls
on a day that is not a Business Day, the payment to be made on such payment date will be made on
the next succeeding Business Day with the same force and effect as if made on such payment date,
and no additional interest will accrue solely as a result of such delayed payment.
[Signatures on following page]
93
Dated as of June 1, 2011 | OIL STATES INTERNATIONAL, INC. |
|||
By: | /s/ Bradley J. Dodson | |||
Bradley J. Dodson | ||||
Senior Vice President, Chief Financial Officer and Treasurer | ||||
ACUTE TECHNOLOGICAL SERVICES, INC. OIL STATES SKAGIT SMATCO, LLC OIL STATES INDUSTRIES, INC. |
||||
By: | /s/ Bradley J. Dodson | |||
Bradley J. Dodson | ||||
Vice President and Assistant Treasurer | ||||
CAPSTAR DRILLING, INC. CAPSTAR DRILLING LP, L.L.C. CAPSTAR HOLDING, L.L.C. GENERAL MARINE LEASING, LLC OIL STATES ENERGY SERVICES, INC. SOONER HOLDING COMPANY SOONER INC. SOONER PIPE, L.L.C. SPECIALTY RENTAL TOOLS & SUPPLY, L.L.C. STINGER WELLHEAD PROTECTION, INCORPORATED WELL TESTING, INC. |
||||
By: | /s/ Bradley J. Dodson | |||
Bradley J. Dodson | ||||
Vice President and Treasurer | ||||
PTI MARS HOLDCO 1, LLC |
||||
By: | /s/ Bradley J. Dodson | |||
Bradley J. Dodson | ||||
Vice President, Chief Financial Officer and Treasurer |
[Signature Page to Indenture]
94
CAPSTAR DRILLING GP, L.L.C. |
||||
By: | OIL STATES ENERGY SERVICES, INC., its sole member |
|||
By: | /s/ Bradley J. Dodson | |||
Bradley J. Dodson | ||||
Vice President and Treasurer | ||||
PTI GROUP USA LLC OIL STATES MANAGEMENT, INC. |
||||
By: | /s/ Bradley J. Dodson | |||
Bradley J. Dodson | ||||
Vice President | ||||
[Signature Page to Indenture]
95
Dated as of June 1, 2011 | WELLS FARGO BANK, N.A. as Trustee, Registrar and Paying Agent |
|||
By: | /s/ Patrick Giordano | |||
Patrick Giordano | ||||
Vice President | ||||
[Signature Page to Indenture]
96
EXHIBIT A
FORM OF NOTE
(Face of 6.500% Senior Note)
6.500% Senior Notes due 2019
(Face of 6.500% Senior Note)
6.500% Senior Notes due 2019
[Global Note Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OR
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR TO SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES
OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE.
[Restricted Notes Legend]
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND THIS NOTE MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE ISSUER THAT (A) THIS NOTE MAY BE OFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 UNDER THE SECURITIES ACT,
(III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE
A-1
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
[Regulation S Legend]
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM
REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND THIS
NOTE MAY NOT BE TRANSFERRED IN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S.
PERSON IN THE ABSENCE OF THIS REGISTRATION EXCEPT PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE SECURITIES LAWS. TERMS
USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE SECURITIES ACT.
A-2
No. | $ | |
CUSIP NO. 1 | ||
ISIN |
Oil States International, Inc. (including any successor thereto) promises to pay to Cede & Co.
or registered assigns, the principal sum of ________ (as may be increased or decreased as set forth
on the Schedule of Increases and Decreases attached hereto) on June 1, 2019.
Interest Payment Dates: June 1 and December 1, beginning December 1, 2011
Record Dates: May 15 and November 15 (whether or not a Business Day)
Reference is made to further provisions of this Note set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Note shall not be entitled to any benefits under
the Indenture referred to on the reverse hereof or be valid or obligatory for any purpose.
1 | Rule 144A Note CUSIP: 678026 AC9 | |
Rule 144A Note ISIN: US678026AC90 | ||
Regulation S Note CUSIP: U6785Y AA8 | ||
Regulation S Note ISIN: USU6785YAA83 | ||
Unrestricted Note CUSIP: 678026 AD7 | ||
Unrestricted Note ISIN: US678026AD73 |
A-3
OIL STATES INTERNATIONAL, INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
This is one of the Notes referred to in the
within-mentioned Indenture:
within-mentioned Indenture:
Dated:
WELLS FARGO BANK, N.A., as Trustee
By:
A-4
(Back of 6.500% Senior Note)
6.500% Senior Notes due 2019
6.500% Senior Notes due 2019
Capitalized terms used herein shall have the meanings assigned to them in the Indenture
referred to below unless otherwise indicated.
(1) Interest. Oil States International, Inc., a Delaware corporation, and any
successor thereto (the Issuer) promises to pay interest on the unpaid principal amount of this
6.500% Senior Note due 2019 (a Note) at a fixed rate of 6.500% per annum. The Issuer will pay
interest in U.S. dollars semiannually in arrears on June 1 and December 1, commencing on December
1, 2011 (each an Interest Payment Date) or if any such day is not a Business Day, on the next
succeeding Business Day with the same force and effect as if made on such Interest Payment Date,
and no additional interest shall accrue solely as a result of such delayed payment. Interest on the
Notes shall accrue from the most recent date to which interest has been paid, or, if no interest
has been paid, from and including the date of issuance. The Issuer shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the rate
equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Additional Interest, if any (without regard to any applicable grace
period), at the same rate to the extent lawful. Interest shall be computed on the basis of a
360-day year comprised of twelve 30-day months.
(2) Method of Payment. The Issuer will pay interest on the Notes (except defaulted
interest) on the applicable Interest Payment Date to the Persons who are registered Holders at the
close of business on the May 15 and November 15 preceding the Interest Payment Date (whether or not
a Business Day), even if such Notes are cancelled after such record date and on or before such
Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to
defaulted interest. If a Holder has given written wire transfer instructions to the Trustee at
least 10 Business Days prior to the applicable Interest Payment Date, the Issuer will make all
payments of principal, premium, interest and Additional Interest, if any, on such Holders Notes by
wire transfer of immediately available funds to the account in New York specified in those
instructions. Otherwise, payments on the Notes will be made at the office or agency of the Trustee
or Paying Agent in the City and State of New York unless the Issuer elects to make interest
payments by check mailed to the Holders at their addresses set forth in the register of Holders.
Such payment shall be in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts.
Any payments of principal of this Note prior to Stated Maturity shall be binding upon all
future Holders of this Note and of any Note issued upon the registration of transfer hereof or in
exchange hereof or in lieu hereof, whether or not noted hereon. The final principal amount due and
payable at the maturity of this Note shall be payable only upon presentation and surrender of this
Note at an office of the Trustee or the Trustees agent appointed for such purposes. Payments in
respect of Global Notes will be made by wire transfer of immediately available funds to the
Depositary.
A-5
(3) Paying Agent and Registrar. Initially, Wells Fargo Bank, N.A. shall act as Paying
Agent and Registrar. The Issuer may change any Paying Agent or Registrar without notice to any
Holder, and the Issuer and/or any Restricted Subsidiaries may act as Paying Agent or Registrar.
(4) Indenture. The Issuer issued the Notes under an Indenture, dated as of June 1,
2011 (the Indenture), among the Issuer, the Guarantors thereto and the Trustee. The terms of the
Notes include those stated in the Indenture and those made a part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb) (the TIA). To the
extent the provisions of this Note are inconsistent with the provisions of the Indenture, the
Indenture shall govern. The Notes are subject to all such terms, and Holders are referred to the
Indenture and the TIA for a statement of such terms. The Initial Notes issued on the Issue Date
were initially issued in an aggregate principal amount of $600,000,000. The Indenture permits the
issuance of Additional Notes subject to compliance with certain conditions.
The payment of principal, interest and Additional Interest, if any, on the Notes and all other
amounts under the Indenture is unconditionally guaranteed, jointly and severally, on a senior
unsecured basis by the Guarantors.
(5) Optional Redemption.
(a) The Notes may be redeemed, in whole or in part, at any time prior to June 1, 2014
at the option of the Issuer, at a redemption price equal to 100.0% of the principal amount
of the Notes redeemed plus the Applicable Premium (calculated by the Issuer) as of, and
accrued and unpaid interest and Additional Interest, if any, to, the applicable redemption
date (subject to the right of Holders of record on the relevant record date to receive
interest due on the relevant Interest Payment Date).
(b) The Notes are subject to redemption, at the option of the Issuer, in whole or in
part, at any time or from time to time on or after June 1, 2014, at the redemption prices
(expressed as percentages of the principal amount to be redeemed) set forth below, plus
accrued and unpaid interest and Additional Interest thereon, if any, to the applicable
redemption date (subject to the right of Holders on the relevant record date to receive
interest due on the relevant Interest Payment Date), if redeemed during the 12-month period
beginning June 1 of the years indicated below:
Year | Redemption Price | |||
2014 |
104.875 | % | ||
2015 |
103.250 | % | ||
2016 |
101.625 | % | ||
2017 and thereafter |
100.000 | % |
(c) At any time or from time to time prior to June 1, 2014, the Issuer, at its option,
may on any one or more occasions redeem up to 35.0% of the principal amount of the
outstanding Notes issued under the Indenture (calculated after giving effect to any issuance
of Additional Notes) with the net cash proceeds of one or more Qualified Equity
A-6
Offerings at a redemption price equal to 106.500% of the principal amount of the Notes
to be redeemed, plus accrued and unpaid interest and Additional Interest thereon, if any, to
the date of redemption (subject to the right of Holders of record on the relevant record
date to receive interest due on the relevant Interest Payment Date); provided that:
(1) at least 65.0% of the aggregate principal amount of Notes issued
under the Indenture on the Issue Date remains outstanding immediately after
giving effect to any such redemption; and
(2) the redemption occurs not more than 180 days after the date of the
closing of any such Qualified Equity Offering.
(d) The Notes may also be redeemed in certain circumstances set forth in Section 4.13
of the Indenture.
(6) Mandatory Redemption. Except as provided in the Indenture, the Issuer shall not be
required to make mandatory redemption or sinking fund payments with respect to Notes.
(7) Offer to Purchase upon Change of Control.
(a) Upon the occurrence of a Change of Control, the Issuer may be required to offer to
repurchase all or any part of each Holders Notes pursuant to a Change of Control Offer on
terms set forth in the Indenture.
(b) Upon the occurrence of certain Asset Sales, the Issuer may be required to offer to
purchase Notes.
(c) Holders of the Notes that are the subject of an offer to purchase will receive
notice of a Net Proceeds Offer or the Change of Control Offer, as applicable, pursuant to an
Asset Sale or a Change of Control from the Issuer prior to any related purchase date and may
elect to have such Notes purchased by completing the form titled Option of Holder to Elect
Purchase attached hereto.
(8) Notice of Redemption. Notice of redemption shall be delivered at least 30 days
but not more than 60 days before the redemption date (except that notices may be delivered more
than 60 days before a redemption date if the notice is issued in accordance with Section 8.8 of the
Indenture) to each Holder whose Notes are to be redeemed in accordance with Section 11.2 of the
Indenture. Notes in denominations larger than $2,000 may be redeemed in part so long as no partial
redemption results in a Note having a principal amount of less than $2,000.
(9) Denominations, Transfer, Exchange. The Notes are in registered form without
coupons in initial denominations of $2,000 and integral multiples of $1,000 in excess thereof. The
transfer of the Notes may be registered and the Notes may be exchanged as provided in the
Indenture. The Registrar, the Trustee and the Issuer may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents, and the Issuer may require a Holder to pay
any stamp or transfer tax or similar government charge required by law or permitted by the
Indenture in accordance with Section 2.6(g)(2) of the Indenture. The Registrar is not required (A)
to issue, to register the transfer of or to exchange Notes during a period beginning at the opening
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of 15 days before the day of any selection of Notes for redemption and ending at the close of
business on the day of such selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of any Note being
redeemed in part, or (C) to register the transfer of or to exchange a Note between a record date
and the next succeeding Interest Payment Date.
(10) Persons Deemed Owners. The registered Holder of a Note may be treated as its
owner for all purposes.
(11) Amendment, Supplement and Waiver. The Indenture, the Notes and the Guarantees
may be amended or supplemented as provided in the Indenture.
(12) Defaults and Remedies. If an Event of Default (other than an Event of Default
relating to certain bankruptcy events with respect to the Issuer) shall have occurred and be
continuing under the Indenture, the Trustee, by written notice to the Issuer, or the Holders of at
least 25.0% in aggregate principal amount of the Notes then outstanding by written notice to the
Issuer and the Trustee, may declare all amounts owing under the Notes to be due and payable. Upon
such acceleration declaration, the aggregate principal of and accrued and unpaid interest on the
outstanding Notes shall become due and payable immediately. If an Event of Default relating to
specified bankruptcy events occurs with respect to the Issuer, then all unpaid principal of, and
premium, if any, and accrued and unpaid interest, if any, on all of the outstanding Notes shall
ipso facto become and be immediately due and payable without any declaration or other action or
notice on the part of the Trustee or any Holder of the Notes. Accelerations may be rescinded, and
Events of Default may be waived as provided in the Indenture.
(13) No Recourse Against Others. No director, officer, employee, incorporator or
stockholder, partner or member of the Issuer or any Guarantor, as such, will have any liability for
any indebtedness, obligations or liabilities of the Issuer under the Notes or the Indenture or of
any Guarantor under its Guarantee or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of the Notes and the
Guarantees, to the extent permitted by applicable law.
(14) Authentication. This Note shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent.
(15) Abbreviations. Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (=
joint tenants with right of survivorship and not as tenants in common), CUST (= custodian) and
U/G/M/A (= Uniform Gifts to Minors Act).
(16) CUSIP Numbers. Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on
the Notes, and the Trustee may use CUSIP numbers in notices of redemption as a convenience to the
Holders. No representation is made as to the accuracy of such numbers either as printed on the
Notes or as contained in any notice of redemption, and reliance may be placed only on the other
identification numbers placed thereon.
A-8
The Issuer shall furnish to any Holder upon written request and without charge a copy of the
Indenture. Requests may be made to:
Oil States International, Inc.
333 Clay Street, Suite 4620
Houston, Texas 77002
Facsimile: (405) 849-6224
Attention: Chief Financial Officer
333 Clay Street, Suite 4620
Houston, Texas 77002
Facsimile: (405) 849-6224
Attention: Chief Financial Officer
A-9
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:
Your Signature: | ||||
(Sign exactly as your name appears on the face of this Note) | ||||
Signature guarantee:
A-10
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.10 or
Section 4.13 of the Indenture, check the box below:
o Section 4.10 o Section 4.13
If you want to elect to have only part of the Note purchased by the Issuer pursuant to Section
4.10 or Section 4.13 of the Indenture, state the amount you elect to have purchased:
$______________
Date:
Your Signature: | ||||
(Sign exactly as your name appears on the face of this Note) | ||||
Tax Identification No.:
Signature guarantee:
A-11
[INCLUDE IN TRANSFER RESTRICTED NOTES]
CERTIFICATE TO BE DELIVERED UPON
EXCHANGE OF TRANSFER RESTRICTED NOTES
EXCHANGE OF TRANSFER RESTRICTED NOTES
Oil States International, Inc.
333 Clay Street, Suite 4620
Houston, Texas 77002
Facsimile: (713) 652-0582
Attention: Chief Financial Officer
333 Clay Street, Suite 4620
Houston, Texas 77002
Facsimile: (713) 652-0582
Attention: Chief Financial Officer
Wells Fargo Bank, N.A.
1445 Ross Avenue, 2nd Floor
MAC T5303-022
Dallas, Texas 75202-2812
Facsimile: (214) 777-4086
Attention: Corporate, Municipal & Escrow Services
1445 Ross Avenue, 2nd Floor
MAC T5303-022
Dallas, Texas 75202-2812
Facsimile: (214) 777-4086
Attention: Corporate, Municipal & Escrow Services
Re: CUSIP NO. ________
Reference is hereby made to that certain Indenture dated June 1, 2011 (the Indenture) among
Oil States International, Inc. (the Issuer), the guarantors named therein, and Wells Fargo Bank,
N.A., as trustee (the Trustee). Capitalized terms used but not defined herein shall have the
meanings set forth in the Indenture.
This certificate relates to $______ principal amount of Notes held in (check applicable space)
___________ book-entry or ____________ definitive form by the undersigned.
The undersigned ______________ (transferor) (check one box below):
o
|
hereby requests the Registrar to deliver in exchange for its beneficial interest in the Global Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above), in accordance with Section 2.6 of the Indenture; | |
o
|
hereby requests the Trustee to exchange a Note or Notes to ________________________ (transferee). |
In connection with any transfer of any of the Notes evidenced by this certificate occurring
prior to the expiration of the periods referred to in Rule 144(d) under the Securities Act of 1933,
as amended, the undersigned confirms that such Notes are being transferred in accordance with its
terms:
A-12
CHECK ONE BOX BELOW:
(1) o
|
to the Issuer or any of its subsidiaries; or | |
(2) o
|
inside the United States to a qualified institutional buyer (as defined in Rule 144A under the Securities Act of 1933, as amended) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A under the Securities Act of 1933, as amended, in each case pursuant to and in compliance with Rule 144A thereunder; or | |
(3) o
|
outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act of 1933, as amended, in compliance with Rule 904 thereunder. |
Unless one of the boxes is checked, the Registrar will refuse to register any of the Notes
evidenced by this certificate in the name of any person other than the registered Holder thereof.
Signature | ||||
Signature Guarantee: |
||
(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program) |
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that each of it and
any such account is a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act of 1933, as amended (Rule 144A), and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer
as the undersigned has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the undersigneds foregoing
representations in order to claim the exemption from registration provided by Rule 144A.
[Name of Transferee] |
||||
NOTICE: To be executed by an executive officer, if an entity | ||||
Dated:
A-13
[INCLUDE IN NOTES BEARING THE REGULATION S LEGEND]
CERTIFICATE TO BE DELIVERED UPON
EXCHANGE OF NOTES BEARING THE REGULATION S LEGEND
EXCHANGE OF NOTES BEARING THE REGULATION S LEGEND
Oil States International, Inc.
333 Clay Street, Suite 4620
Houston, Texas 77002
Facsimile: (713) 652-0582
Attention: Chief Financial Officer
333 Clay Street, Suite 4620
Houston, Texas 77002
Facsimile: (713) 652-0582
Attention: Chief Financial Officer
Wells Fargo Bank, N.A.
1445 Ross Avenue, 2nd Floor
MAC T5303-022
Dallas, Texas 75202-2812
Facsimile: (214) 777-4086
Attention: Corporate, Municipal & Escrow Services
1445 Ross Avenue, 2nd Floor
MAC T5303-022
Dallas, Texas 75202-2812
Facsimile: (214) 777-4086
Attention: Corporate, Municipal & Escrow Services
Re: CUSIP NO. _______
Reference is hereby made to that certain Indenture dated June 1, 2011 (the Indenture) among
Oil States International, Inc. (the Issuer), the guarantors named therein, and Wells Fargo Bank,
N.A., as trustee (the Trustee). Capitalized terms used but not defined herein shall have the
meanings set forth in the Indenture.
This certificate relates to $___________ principal amount of Notes held in (check applicable
space) _________ book-entry or ___________ definitive form by the undersigned.
The undersigned ___________ (transferor) (check one box below):
o | hereby requests the Registrar to deliver in exchange for its beneficial interest in the Global Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above), in accordance with Section 2.6 of the Indenture; | |
o | hereby requests the Trustee to exchange a Note or Notes to ____________ (transferee). |
In connection with any transfer of any of the Notes evidenced by this certificate occurring
prior to the expiration of the Restricted Period (as defined in the Indenture), the undersigned
confirms that such Notes are being transferred in accordance with its terms:
A-14
CHECK ONE BOX BELOW:
(1) o
|
to the Issuer or any of its subsidiaries; or | |
(2) o
|
inside the United States to a qualified institutional buyer (as defined in Rule 144A under the Securities Act of 1933, as amended) that purchases for its own account or for the account of a qualified institutional buyer to whom notice is given that such transfer is being made in reliance on Rule 144A under the Securities Act of 1933, as amended, in each case pursuant to and in compliance with Rule 144A thereunder; or | |
(3) o
|
outside the United States in an offshore transaction within the meaning of Regulation S under the Securities Act of 1933, as amended, in compliance with Rule 904 thereunder. |
Prior to the expiration of the Restricted Period, unless one of the boxes is checked, the
Registrar will refuse to register any of the
Notes evidenced by this certificate in the name of any person other than the registered Holder
thereof.
Signature | ||||
Signature Guarantee: |
||
(Signature must be guaranteed by a participant in a recognized signature guarantee medallion program) |
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or
an account with respect to which it exercises sole investment discretion and that each of it and
any such account is a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act of 1933, as amended (Rule 144A), and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer
as the undersigned has requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the undersigneds foregoing
representations in order to claim the exemption from registration provided by Rule 144A.
[Name of Transferee] |
||||
NOTICE: To be executed by an executive officer, if an entity | ||||
Dated:
A-15
SCHEDULE OF INCREASES AND DECREASES OF 6.500% SENIOR NOTES
The following transfers, exchanges and redemption of this Global Note have been made:
The following transfers, exchanges and redemption of this Global Note have been made:
Principal Amount of | ||||||||||||||||||
this Global Note | ||||||||||||||||||
Date of | Amount of Decrease | Amount of Increase | Following Such | Signature of | ||||||||||||||
Transfer, Exchange | in Principal Amount | in Principal Amount | Decrease (or | Trustee or Note | ||||||||||||||
or Redemption | of this Global Note | of this Global Note | Increase) | Custodian | ||||||||||||||
A-16
EXHIBIT B
[FORM OF SUPPLEMENTAL INDENTURE TO BE DELIVERED
BY SUBSEQUENT GUARANTORS]
BY SUBSEQUENT GUARANTORS]
This Supplemental Indenture and Guarantee, dated as of , 20 (this
Supplemental Indenture or Guarantee), among (the New Guarantor), Oil
States International, Inc. (together with its successors and assigns, the Issuer), each other
then-existing Guarantor under the Indenture referred to below (the Guarantors), and Wells Fargo
Bank, N.A., as Trustee, paying agent and registrar under such Indenture.
W I T N E S S E T H:
WHEREAS, the Issuer, the Guarantors and the Trustee have heretofore executed and delivered an
Indenture, dated as of June 1, 2011 (as amended, supplemented, waived or otherwise modified, the
Indenture), providing for the issuance of an unlimited aggregate principal amount of 6.500%
Senior Notes due 2019 of the Issuer (the Notes);
WHEREAS, Section 4.16 of the Indenture provides that the Issuer will cause any Restricted
Subsidiary of the Issuer, other than a Guarantor, that guarantees any Indebtedness of the Issuer or
any Guarantor under a Credit Facility, to execute and deliver a Guarantee with respect to the Notes
on the same terms and conditions as those set forth in the Indenture.
WHEREAS, pursuant to Section 9.1 of the Indenture, the Trustee, the Issuer and the Guarantors
are authorized to execute and deliver this Supplemental Indenture to amend the Indenture, without
the consent of any Holder to add an additional Guarantor.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Issuer, the
existing Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit
of the Holders as follows:
ARTICLE I
Definitions
Definitions
SECTION 1.1 Defined Terms. As used in this Supplemental Indenture, capitalized terms
defined in the Indenture or in the preamble or recitals thereto are used herein as therein defined.
The words herein, hereof and hereby and other words of similar import used in this
Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular
section hereof.
ARTICLE II
Agreement to be Bound; Guarantee
Agreement to be Bound; Guarantee
SECTION 2.1 Agreement to be Bound. The New Guarantor hereby becomes a party to the
Indenture as a Guarantor and as such shall have all of the rights and be subject to all of the
obligations and agreements of a Guarantor under the Indenture. The New Guarantor agrees to be
B-1
bound by all of the provisions of the Indenture applicable to a Guarantor and to perform all
of the obligations and agreements of a Guarantor under the Indenture.
ARTICLE III
Miscellaneous
Miscellaneous
SECTION 3.1 Governing Law. This Supplemental Indenture shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 3.2 Severability Clause. In case any provision in this Supplemental Indenture
shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby and such provision shall
be ineffective only to the extent of such invalidity, illegality or unenforceability.
SECTION 3.3 Ratification of Indenture; Supplemental Indentures Part of Indenture; No
Liability of Trustee. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full
force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes,
and every Holder of a Note heretofore or hereafter authenticated and delivered shall be bound
hereby. The Trustee makes no representation or warranty as to the validity or sufficiency of this
Supplemental Indenture or the New Guarantors Guarantee. Additionally, the Trustee shall not be
responsible in any manner whatsoever for or with respect to any of the recitals or statements
contained herein, all of which recitals or statements are made solely by the Issuer, the New
Guarantor and the Guarantors, and the Trustee makes no representation with respect to any such
matters.
SECTION 3.4 Counterparts. The parties hereto may sign one or more copies of this
Supplemental Indenture in counterparts, all of which together shall constitute one and the same
agreement.
SECTION 3.5 Headings. The headings of the Articles and the sections in this Guarantee
are for convenience of reference only and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
[Signatures on following page]
B-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the date first above written.
OIL STATES INTERNATIONAL, INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
[EXISTING GUARANTORS] |
||||
By: | ||||
Name: | ||||
Title: | ||||
[NEW GUARANTOR], as a Guarantor |
||||
By: | ||||
Name: | ||||
Title: | ||||
WELLS FARGO BANK, N.A., as Trustee |
||||
By: | ||||
Name: | ||||
Title: |
B-3
EXHIBIT C
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]
IN CONNECTION WITH TRANSFERS PURSUANT TO RULE 144A]
Oil States International, Inc.
333 Clay Street, Suite 4620
Houston, Texas 77002
Facsimile: (713) 652-0582
Attention: Chief Financial Officer
333 Clay Street, Suite 4620
Houston, Texas 77002
Facsimile: (713) 652-0582
Attention: Chief Financial Officer
Wells Fargo Bank, N.A.
1445 Ross Avenue, 2nd Floor
MAC T5303-022
Dallas, Texas 75202-2812
Facsimile: (214) 777-4086
Attention: Corporate, Municipal & Escrow Services
1445 Ross Avenue, 2nd Floor
MAC T5303-022
Dallas, Texas 75202-2812
Facsimile: (214) 777-4086
Attention: Corporate, Municipal & Escrow Services
Re: Oil States International, Inc. (the Issuer) 6.500% Senior Notes due 2019 (the Notes)
Ladies and Gentlemen:
In connection with our proposed sale of $____________ aggregate principal amount at maturity
of the Notes (CUSIP No. _____________), we hereby certify that such transfer is being effected
pursuant to and in accordance with Rule 144A (Rule 144A) under the United States Securities Act
of 1933, as amended (the Securities Act), and, accordingly, we hereby further certify that the
Notes are being transferred to a person that we reasonably believe is purchasing the Notes for its
own account, or for one or more accounts with respect to which such person exercises sole
investment discretion, and such person and each such account is a qualified institutional buyer
within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and such
Notes are being transferred in compliance with any applicable blue sky securities laws of any state
of the United States.
The Issuer and you are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours, | ||||
[Name of Transferor] |
||||
By: | ||||
Authorized Signature | ||||
C-1
EXHIBIT D
[FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S]
IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S]
Oil States International, Inc.
333 Clay Street, Suite 4620
Houston, Texas 77002
Facsimile: (713) 652-0582
Attention: Chief Financial Officer
333 Clay Street, Suite 4620
Houston, Texas 77002
Facsimile: (713) 652-0582
Attention: Chief Financial Officer
Wells Fargo Bank, N.A.
1445 Ross Avenue, 2nd Floor
MAC T5303-022
Dallas, Texas 75202-2812
Facsimile: (214) 777-4086
Attention: Corporate, Municipal & Escrow Services
1445 Ross Avenue, 2nd Floor
MAC T5303-022
Dallas, Texas 75202-2812
Facsimile: (214) 777-4086
Attention: Corporate, Municipal & Escrow Services
Re: Oil States International, Inc. (the Issuer) 6.500% Senior Notes due 2019 (the Notes)
Ladies and Gentlemen:
In connection with our proposed sale of $______________ aggregate principal amount of the
Notes (CUSIP No._______________), we confirm that such sale has been effected pursuant to and in
accordance with Regulation S (Regulation S) under the U.S. Securities Act of 1933, as amended
(the Securities Act), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United States;
(2) either (a) at the time the buy order was originated, the transferee was outside the United
States or we and any person acting on our behalf reasonably believed that the transferee was
outside the United States or (b) the transaction was executed in, on or through the facilities of a
designated off-shore securities market and neither we nor any person acting on our behalf knows
that the transaction has been pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in contravention of the
requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the registration requirements of
the Securities Act.
In addition, if the sale is made during a restricted period and the provisions of Rule 903(b)
or Rule 904(b) of Regulation S are applicable thereto, we confirm that such sale has been made in
accordance with the applicable provisions of Rule 903(b) or Rule 904(b), as the case may be.
D-1
The Issuer and you are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any administrative or legal
proceedings or official inquiry with respect to the matters covered hereby. Terms used in this
certificate have the meanings set forth in Regulation S.
Very truly yours, | ||||
[Name of Transferor] |
||||
By: | ||||
Authorized Signature | ||||
D-2